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NEW YORK (AP) — A federal judge seemed inclined once more to dismiss former President Donald Trump’s attempt to overturn his conviction related to hush money payments. On Wednesday, he criticized Trump’s legal team for what he described as trying to “take two bites at the apple” with their legal tactics.
Judge Alvin K. Hellerstein, responding to an appeals court’s directive for a reevaluation, engaged in a mix of probing and skeptical questioning over nearly three hours. Trump is pushing to transfer his case from state to federal court, aiming to leverage presidential immunity as a defense for dismissal.
Throughout the Manhattan federal court session, Hellerstein clashed with Trump’s attorney, Jeffrey Wall, suggesting the appeal might be futile since the legal team delayed seeking federal intervention following the landmark May 2024 verdict. Hellerstein indicated he would issue a decision at a later time.
The judge noted that the U.S. Supreme Court’s decision, delivered about a month post-verdict, which stated that presidents and former presidents cannot be prosecuted for official acts, introduced unprecedented legal issues. However, he emphasized that the ruling affirmed no president is exempt from the law.
But, he said, the high court’s decision made clear that a president is not above the law.
The 2nd U.S. Circuit Court of Appeals in November ordered Judge Hellerstein to reconsider his earlier decision that kept the New York case in state court. A three-judge panel found that the judge, in his September 2025 ruling, had failing to consider “important issues relevant” to Trump’s request to move the case. They expressed no view on how he should rule.
Trump, a Republican, did not attend Wednesday’s arguments.
Afterward, Hellerstein thanked Wall and Steven Wu, a lawyer from the Manhattan district attorney’s office for “very provocative arguments.” The district attorney’s office prosecuted the case and wants it to stay in state court.
Trump was convicted in state court
Trump was convicted in May 2024 of 34 felony counts of falsifying business records to conceal a hush money payment to adult film actor Stormy Daniels, whose allegations of an affair with Trump threatened to upend his 2016 presidential campaign. He was sentenced to an unconditional discharge, leaving his conviction intact but sparing him any punishment.
Trump denies Daniels’ claim and said he did nothing wrong. He has asked a state appellate court to overturn the conviction.
Hellerstein interrupted Wall almost as soon as Wednesday’s arguments began, injecting his thoughts and questions and telling the lawyer “I think I have to quarrel with you a bit” about the sequence of events that followed Trump’s conviction in May 2024.
The judge took issue with the Trump legal team’s decision making after the Supreme Court ruling.
Instead of immediately seeking to move the case to federal court, Trump’s lawyers first asked the trial judge, Juan Merchan, to throw out the verdict on immunity grounds.
Wall argued that Trump’s lawyers were in a time crunch after the Supreme Court’s July 1, 2024, ruling because Trump’s sentencing was scheduled for just 10 days later. Had Trump’s lawyers sought to bring the case to federal court at that point, the district attorney’s office, which prosecuted the case, may have criticized that as premature, Wall said.
Trump’s lawyers did not ask Hellerstein to intervene until nearly two months later. The judge on Wednesday called that a “strategic decision” and suggested that by going to the state court first, Trump’s lawyers cost him the right to pursue remedies in federal court.
“No, your honor,” Wall said. “It is what any sensible litigant would do” in that situation.
“Not so,” Hellerstein replied.
“That is a decision on your part,” the judge added. “You didn’t have to do that. You could have come right to the federal court. Just by filing a notice of removal, there would be no sentencing.”
Trump’s lawyers “made a choice,” Hellerstein said, “and you sought two bites at the apple.”
Normally, such a request must be made within 30 days of an arraignment, but a federal appeals court in Washington, D.C. has ruled that exceptions can be made if “good cause” is shown.
Wu concurred that Wall’s argument “confirms this was a strategic choice by the defendants.”
He also said Trump’s lawyers knew they could have simultaneously submitted arguments or a letter to Merchan and still sought to transfer the case to federal court. Past rulings have made clear that “you cannot go to state court and when you’re unhappy, then go to federal court,” Wu said.
Previous requests to move the case were denied
Hellerstein, who was nominated by Democratic President Bill Clinton, has twice denied Trump’s requests to move the case. The first was after Trump’s March 2023 indictment; the second was the post-verdict ruling at issue at Wednesday’s hearing.
In that ruling, Hellerstein said Trump’s lawyers had failed to meet the high burden of proof for changing jurisdiction and that Trump’s conviction for falsifying business records involved his personal life, not official actions that the Supreme Court ruled are immune from prosecution.
The 2nd Circuit panel said Hellerstein’s ruling, which echoed his pretrial denial, “did not consider whether certain evidence admitted during the state court trial relates to immunized official acts or, if so, whether evidentiary immunity transformed” the hush money case into one that relates to official acts.
The three judges said Hellerstein should closely review evidence Trump claims relate to official acts.
If Hellerstein finds the prosecution relied on evidence of official acts, the judges said, he should weigh whether Trump can argue those actions were taken as part of his White House duties, whether Trump “diligently sought” to have the case moved to federal court and whether the case can even be moved to federal court now that Trump has been convicted and sentenced in state court.