How State Criminal Cases Can Jump to Federal Court—And Why It Rarely Happens

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A federal judge in Manhattan heard arguments about something that almost never happens in American criminal law: whether to move a state conviction to federal court after a jury has already spoken. The defendant was Donald Trump. The conviction—34 felonies for falsifying business records to hide hush money payments to Stormy Daniels—had been handed down by a New York jury. The legal mechanism at issue was so obscure, so rarely successful, that most criminal defense attorneys go their entire careers without seeing it work even once.

Trump’s lawyers want to erase his state conviction by arguing the case should have been in federal court all along. They’re relying on a Supreme Court immunity decision that came out after Trump was convicted—a timing quirk that creates legal questions nobody has confronted before.

The Removal Statute and Federal Officer Protection

On paper, it sounds straightforward. In practice, it’s a minefield.

That third requirement is where most removal petitions die. It’s not enough to say you were doing your job. You need an actual legal shield—federal law that says you can’t be prosecuted for this particular thing you did while doing that job.

For presidents, this question has never come up before. Presidents are federal officers in the most literal sense. The legal framework existed in theory; the practical application was entirely new territory.

Why Post-Conviction Removals Almost Never Succeed

Even when removal petitions have some merit, filing them after conviction is nearly impossible to pull off. Federal courts handle thousands of criminal cases annually, but successful post-conviction removals are so rare they barely register in the statistics.

The procedural reasons are straightforward. This reflects a policy judgment that state courts deserve to run their proceedings without federal interference. Defendants shouldn’t be able to game the system by waiting to see how their state trial goes before deciding they’d prefer federal court instead.

Every federal officer facing state charges could sit through trial, hope for acquittal, and only seek removal if convicted. That would turn removal into a second bite at the apple—a do-over available only to federal employees. Courts have consistently rejected this approach, requiring defendants to seek removal early or show extraordinary circumstances justifying delay.

Once a jury has heard evidence, deliberated, and returned a verdict, the case for moving to federal court becomes much weaker. A jury of twelve people unanimously found guilt beyond a reasonable doubt. State judges oversaw the proceedings with all the constitutional protections defendants receive. Removal exists to protect federal officers from state courts that might be hostile to federal authority or incompetent to handle federal legal questions. But after a full trial with proper procedures, those concerns largely evaporate.

States have primary responsibility for prosecuting crimes within their borders. This power is foundational to state sovereignty—it’s part of what makes states actual governing entities rather than branches of the federal government. The Constitution protects people from being tried twice for the same crime, but both state and federal governments can prosecute the same conduct without violating constitutional protections, reflecting an understanding that state prosecutorial power operates independently of federal court jurisdiction except in narrow circumstances.

If federal officers could routinely remove cases after conviction, that balance would collapse. State accountability for federal officers would become optional, available only when the officer chose not to invoke federal protection.

Judge Hellerstein’s Initial Rejection

Judge Alvin Hellerstein, a Clinton appointee who took senior status in 2011, confronted Trump’s removal petition. His analysis was brief and pointed: the hush money payments were private conduct, not official presidential acts. Even though Trump signed the reimbursement checks to Michael Cohen while serving as president, that temporal coincidence didn’t transform a personal payment scheme into official business.

The legal question was whether paying off a porn star to prevent an embarrassing story from affecting an election constitutes presidential work. Hellerstein concluded it didn’t. Presidents have personal lives, personal lawyers, and personal scandals.

After Trump’s conviction, his lawyers came back with new ammunition: the Supreme Court’s immunity decision in Trump v. United States. Trump’s legal team argued this changed everything. If prosecutors had presented evidence at trial about Trump’s official presidential communications—his tweets, his conversations with White House staff, his reactions to news coverage while serving as president—then the conviction might rest partly on evidence that should have been excluded under the immunity framework.

Hellerstein wasn’t persuaded. In a terse four-page order in September 2024, he wrote that “nothing in the Supreme Court’s opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority.” He added that as a federal judge, he didn’t have jurisdiction to second-guess state court procedures or evaluate claims about trial fairness. Those questions belonged in state appellate courts, not federal court.

The Second Circuit Orders Reconsideration

Trump’s lawyers appealed to the Second Circuit. An appellate panel unanimously ordered a higher court to reconsider. The panel didn’t say Trump should win. They said Hellerstein hadn’t adequately analyzed whether evidence admitted at trial related to immunized official acts, and whether that evidence had improperly influenced the jury.

This matters because of how prosecutors built their case. They didn’t present evidence about the payments themselves. They presented testimony from Hope Hicks, Trump’s former White House communications director, about how Trump reacted when the Wall Street Journal was about to publish the Stormy Daniels story.

Under the Supreme Court’s immunity framework, some of this evidence might qualify as relating to official acts. Presidential communications—even about politically embarrassing subjects—are official when they involve the president’s role as president.

The Second Circuit wanted Hellerstein to grapple with this. Which evidence related to official acts? How much did prosecutors rely on it? Could the conviction stand without it?

The February Hearing and Core Dispute

When Hellerstein took the bench, the legal question had crystallized: does a Supreme Court immunity decision issued after conviction require reconsidering whether evidence admitted at trial should have been excluded?

Trump’s lawyer argued that prosecutors had rushed to trial without waiting for the immunity decision. They’d presented evidence that, under the framework the Supreme Court later established, should have been off-limits.

The Manhattan District Attorney’s office, led by appellate chief Steven Wu, countered that Trump was too late and the conduct was never official anyway. Trump had opportunities to seek removal before and during trial but waited until after conviction. The hush money payments were purely personal—Trump’s private lawyer paying off Trump’s alleged mistress to protect Trump’s electoral prospects. That Trump happened to be president when he signed reimbursement checks didn’t transform personal conduct into official acts.

The core dispute is deceptively simple: what evidence at trial related to Trump’s official presidential acts, and how important was that evidence to the prosecution’s case?

Prosecutors presented a detailed statement of facts when they brought charges, outlining how Trump allegedly falsified business records to conceal the hush money scheme. The records themselves—invoices, ledger entries, checks—were the charged conduct. But proving intent and context required more than documents.

Trump’s legal team argues this evidence relates to official presidential communications and therefore falls within immunity protection. The Supreme Court’s framework doesn’t prevent prosecution for official acts—it prevents using evidence of official acts to prove other crimes. If prosecutors relied substantially on this evidence, the conviction might be tainted even if the underlying conduct (the payments) was private.

The DA argues the opposite. The payments were the crime. Everything else was context showing Trump’s motive and intent. You can’t commit a crime and then claim immunity because you talked about it while president or tried to manage the political fallout from your official position.

Presidential immunity doctrine is new enough that courts haven’t worked out all the boundaries. If a president commits a private crime and then uses official communications to cover it up or manage the consequences, which parts are immune? Can prosecutors reference the cover-up to prove the underlying crime? Or does immunity create areas where state prosecutors can’t bring charges around anything the president says or does in an official capacity, even about private misconduct?

Why Trump’s Case Is Unprecedented

Most removal petitions fail because they’re filed by defendants who aren’t federal officers, or who can’t show their conduct related to federal duties, or who have no real federal legal defense. Trump’s situation is unusual on all three counts.

First, he’s unquestionably a federal officer—or was when the relevant conduct occurred. Presidents are the most federal of federal officers. The removal statute was written with people like customs agents and postal workers in mind, but it doesn’t exclude presidents.

Second, the timing of the Supreme Court’s immunity decision creates a genuine legal question. The decision came out after Trump’s conviction but before his sentencing. This window means Trump can argue that the law changed in a way that materially affects a trial that already happened. Courts normally disfavor applying new rules to things that already happened to undo convictions—people should know the law when they act. But when the Supreme Court establishes a new immunity framework, the situation gets murkier. Did Trump’s trial occur under the wrong legal framework? Should the jury have been instructed differently?

Third, Trump has a real federal legal defense: presidential immunity. He’s not arguing he didn’t do what prosecutors alleged. He’s arguing that even if he did, he’s immune from prosecution for it because it constitutes official conduct that’s partly related to his job as president.

Fourth, a higher court ordered the judge to reconsider. When the Second Circuit ordered reconsideration, it signaled that Hellerstein’s analysis had been insufficient. This creates pressure on the district court to explain its reasoning more thoroughly. If removal is denied again without addressing the appellate court’s specific concerns about evidentiary immunity, another reversal is possible.

The Federalism Question: State Power vs. Presidential Immunity

Before the Supreme Court’s 2024 immunity decision, the conventional understanding was that presidents could be prosecuted for criminal conduct, including by states, as long as the conduct violated the law and wasn’t protected by some other legal doctrine. The Justice Department’s legal office concluded that sitting presidents couldn’t be indicted while in office, but that was about timing and practical governance concerns, not immunity from prosecution altogether.

The immunity decision changed this. By holding that presidents have broad immunity for official acts, the Court created a framework that could potentially shield presidents from state prosecution for many types of conduct. Because the immunity applies to former presidents for actions taken while in office, it’s not about protecting sitting presidents from distraction—it’s about protecting the presidency as an institution from accountability.

If a president can commit what would otherwise be a state crime, claim it relates to official duties, and remove the case to federal court where immunity principles might result in dismissal, then state prosecutorial power becomes less powerful than federal immunity rules. States lose the ability to hold presidents accountable for conduct that occurs within state borders and violates state law.

The counterargument is that this is appropriate given the president’s constitutional status. The presidency is a federal office with federal responsibilities. Allowing states to prosecute presidents for official acts—or for conduct intertwined with official acts—could create fifty different standards for presidential conduct and expose presidents to harassment by hostile state prosecutors. Federal immunity doctrine protects the presidency from this fragmentation.

Hellerstein’s decision on removal will implicitly address this question. Granting removal would signal that presidential immunity considerations override state prosecutorial authority and jury verdicts. Denying removal would signal that state power and jury verdicts retain force even when presidential immunity claims are in play.

Possible Outcomes and Timeline

If Hellerstein denies removal again, the matter likely ends, absent exceptional circumstances. Trump’s legal team could appeal, but higher courts rarely overturn lower judges’ removal decisions twice. Trump’s remaining avenue would be the state appellate process, where he’s already challenging the conviction on various grounds.

State courts don’t have to follow federal immunity rules as strictly as federal courts do. Trump argues the case belongs in federal court because of immunity, but if denied removal, he’s stuck in state court where immunity doctrine has less direct applicability.

If Hellerstein grants removal, the case transfers to his own docket as a federal prosecution. The conviction obtained in state court would likely be voided because it was obtained before the immunity framework was applicable. Trump would potentially face a new trial in federal court under immunity restrictions, or prosecutors might dismiss the charges rather than retry under those constraints.

A federal jury would need instructions that certain evidence is off-limits due to immunity. Prosecutors would need to rebuild their case around evidence that doesn’t reference official acts. Whether the case is winnable under such restrictions is unclear, but it would be substantially harder.

Hellerstein could rule quickly or take months. If he grants removal or issues a complex ruling generating new questions, further appeals would follow. The case could potentially reach the Supreme Court if new questions about what immunity covers or removal statute applicability arise. Given the Court’s demonstrated interest in presidential immunity questions, Supreme Court review is plausible if the case reaches them.

Implications Beyond Trump’s Case

The removal statute protects federal officers. Presidential immunity applies only to presidents and former presidents. The combined factors allowing Trump to argue for removal—federal officer status, a Supreme Court immunity decision issued post-conviction, an appellate court willing to overturn a district judge’s analysis—converge in a way that’s virtually impossible for others to replicate.

The case demonstrates how law can change in ways that create new questions about finality and justice. When the Supreme Court established its immunity framework in 2024, it didn’t explicitly address how that framework would interact with state prosecutions, trial verdicts, or removal procedures. Courts must now work through these interactions case by case, building precedents that will govern future interactions between presidential immunity and state prosecutorial power.

The legal system needs cases to end eventually, but also needs to apply law fairly and consistently, even when new understandings emerge. State criminal convictions are ordinarily final unless overturned through state appellate processes or through carefully limited federal court review when someone claims their constitutional rights were violated.

When a Supreme Court decision establishes new immunity doctrine post-conviction, the interaction becomes unclear. Is the conviction final, or should it be reconsidered under new law? Should a jury’s verdict be respected even if jurors didn’t have the benefit of the immunity framework in their instructions? Should state prosecutors’ work be undone by federal immunity doctrine they didn’t anticipate when bringing charges?

The 2024 immunity decision will affect how courts handle presidential conduct for years, possibly decades. Other cases involving presidential actions—whether criminal prosecutions or civil suits—will raise similar questions about what evidence can be used, what conduct is protected, and when federal immunity principles override state authority.

Post-conviction removals from state to federal court remain extraordinarily rare. Removal is disfavored as disruptive to finality. State convictions ordinarily remain in state courts even when novel legal questions arise.

Trump’s case is the exception that proves the rule. Whether he ultimately succeeds in moving his case to federal court, the rarity of such moves will remain the dominant feature of American criminal procedure. The machinery of justice grinds slowly, but it rarely reverses course after a jury has spoken. That Trump got even this far—a reconsideration hearing after conviction—is itself remarkable.

Hellerstein’s decision will either confirm that rarity or create a new precedent that future defendants with federal connections might try to exploit. Either way, the decision will reveal something about how American law balances state power, federal authority, and the unique constitutional status of the presidency in an era when those boundaries are being tested in ways the people who wrote the Constitution never anticipated.

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