Can State Prosecutors Charge a President? The Constitutional Question at Stake

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The Second Circuit’s November 2025 order doesn’t cancel Trump’s 34-count felony conviction for falsifying business records. But it does something that could matter more: it forces a federal judge to decide whether this case should be in state court or federal court, or whether the Constitution protects sitting and former presidents from being prosecuted by states.

What’s at stake is whether individual states can use their criminal justice systems to hold presidents accountable, or whether the office itself creates a zone of immunity that state prosecutors cannot penetrate. And nobody—not the Supreme Court, not Congress, not 235 years of constitutional practice—has ever definitively answered it.

Trump is forcing the issue in the most direct way possible: by sitting in the Oval Office as a convicted felon under New York state law while his lawyers argue that the conviction itself violates the constitutional structure of the presidency.

The Manhattan Conviction

Trump Organization records disguised reimbursements to Michael Cohen as payments for legal services under a retainer agreement that didn’t exist. That’s 34 counts of falsifying business records in the first degree. Judge Juan Merchan gave him an “unconditional discharge” on January 10, 2025—a conviction with no prison, probation, or fines. Trump carried this conviction with him when he was sworn in as president ten days later.

The Supreme Court’s Immunity Decision

About one month after Trump’s conviction but before his sentencing, the Supreme Court issued its landmark immunity decision in an unrelated case about Trump’s efforts to overturn the 2020 election. The 6-3 ruling, written by Chief Justice John Roberts, said former presidents can’t be criminally prosecuted for things they do as part of their job.

The decision established three tiers: absolute immunity for actions within the president’s core constitutional powers (directing the Justice Department, issuing pardons, military decisions), a strong legal protection for other official acts unless proven otherwise, and no immunity for purely private conduct. Roberts said prosecutors can’t use evidence of things a president did as part of his job—even to prove guilt on unrelated charges.

Were those “official acts” that a jury should have been barred from examining? That’s now the question a federal judge must answer.

The Removal Question: State Court or Federal Court?

Trump tried to invoke removal before his trial, arguing that the hush money case related to his role as president and that federal law is supreme over state law, so federal officials can’t be prosecuted by states for federal work.

U.S. District Judge Alvin K. Hellerstein denied the removal motion. The hush money payments and record falsification were private, unofficial conduct unrelated to Trump’s employment as president. The payments happened before he took office, and the falsified records were Trump Organization business documents, not federal records. The motive was protecting his personal reputation and business, not doing his job as president.

Trump appealed and lost. He tried again after the Supreme Court’s immunity decision, arguing the legal terrain had fundamentally changed. Judge Hellerstein denied that motion too.

But the Second Circuit wasn’t satisfied. In November 2025, the appellate panel ordered Judge Hellerstein to reconsider, finding he hadn’t adequately analyzed how the Supreme Court’s immunity decision affected the removal question. The panel worried that the trial used evidence about things Trump did as president—evidence that should have been off-limits.

Judge Hellerstein held a hearing on February 4, 2026, and must decide whether to transfer the case to federal court—which would likely cancel the conviction and restart the case under different rules and standards.

The Constitutional Question: Can States Prosecute Presidents?

The Constitution doesn’t clearly say whether states can prosecute sitting or former presidents at all. The framers didn’t contemplate it. The Supreme Court has never ruled on it. History provides only ambiguous guidance.

Three Constitutional Principles in Collision

The legal fight hinges on three constitutional principles that pull in different directions.

First: presidential immunity. The idea is that presidents need to make tough calls about war, national security, and the economy without fear of lawsuits from people who disagree. But that case was about being sued for money, not being prosecuted for crimes—and the justices said that difference matters.

Second: immunity based on federal law being supreme over state law. The Constitution says federal law beats state law when they conflict. This means states generally can’t prosecute federal officials for things they did as part of their federal job, if federal law allowed it. If states could prosecute federal officials for federal work, they could stop the government from functioning. But this protection only applies when federal officials stay within their legal authority and don’t break federal law.

Third: state sovereignty and police powers. States have always been responsible for enforcing criminal law within their borders. If the presidency creates blanket immunity from state prosecution, it means presidents can break state law without consequences—which conflicts with the idea that everyone should be equal under the law and that states should have power.

The question is which principle wins. And the answer depends entirely on whether Trump’s conduct—arranging hush money payments, falsifying business records, communicating with staff about these matters while president—constitutes “official acts” worthy of immunity protection.

What Counts as an “Official Act”?

The Supreme Court said immunity covers things a president would normally do as part of the job, and courts should focus on whether the president had authority to act, not whether the action was smart, legal, or motivated by corruption.

Trump’s lawyers argue that even if the hush money payment itself was private, his decision-making about it while president, his communications with White House staff about it, and his management of the situation involved federal concerns and federal actors. They point out that the payment was made to influence the 2016 election, which is a federal matter. They emphasize that Trump discussed the matter with Hope Hicks and other White House staff—federal employees. They argue that managing his public reputation and ability to govern is part of being president.

Manhattan prosecutors respond that this stretches “official acts” beyond recognition. The payment happened before Trump was president, when he was a private citizen. The records falsified were Trump Organization business documents, not federal records. The motive was protecting his personal reputation and business interests, not executing any constitutional duty. That Trump was president when he reimbursed Cohen doesn’t make private conduct into official presidential action.

The Supreme Court’s decision doesn’t clearly answer this question. The majority opinion emphasized that determining whether conduct is official or unofficial “can be difficult” and that courts cannot consider the president’s motives. But it also said immunity doesn’t cover things that have nothing to do with being president. It’s still unclear exactly where the line is between official presidential acts and private acts that happen to occur while someone is president.

What Happens If the Case Moves to Federal Court

If Judge Hellerstein agrees to move the case to federal court, Trump’s conviction would likely be canceled and the case would restart. That’s not moving to a different courthouse—it’s changing which court system handles the case and what rules apply.

In federal court, Trump’s immunity arguments would get a fresh hearing under the Supreme Court’s 2024 decision. A federal judge would have to decide whether evidence about Trump’s conversations with White House staff and his decisions as president should have been kept out of the trial. If the judge agrees that evidence should have been excluded, Trump might get a new trial without that evidence. Or the charges might be dropped entirely if a federal judge decides that immunity protects him from being prosecuted for this conduct.

A federal judge might also apply different legal standards to the underlying charges. State and federal courts sometimes understand criminal laws differently. Some legal scholars have criticized Manhattan’s case for using the falsification law in an unusual way—treating lesser crimes as serious felonies based on an intent to hide another crime that wasn’t even charged.

If the case transfers to federal court, it could be years before final resolution. Appeals, motions, legal arguments—all of it starts over. Trump would remain president throughout, with his conviction in limbo.

If Judge Hellerstein denies the removal motion again, Trump will appeal to the Second Circuit. Given that the appellate court has already expressed skepticism about the district judge’s analysis, another appeal might well succeed in getting the case transferred anyway.

Presidential Accountability Versus Presidential Power

The outcome here will set a legal rule that applies far beyond Trump and hush money payments. It will determine whether states can prosecute sitting or recent presidents, or whether the Constitution protects presidents from state prosecution.

The case for immunity rests on practical concerns about presidential effectiveness. If a president has to worry about state prosecutors bringing charges, the president would have a harder time focusing on national issues and making tough decisions. The United States has more than 50 state attorneys general from different political parties. If each could prosecute a president, the president could face lawsuits from multiple states at the same time. A president could face conflicting court orders from different states. The presidency, as the framers designed it, needs some protection from constant legal attacks.

The case against immunity rests on accountability and the rule of law. No president should be above the law because they’re president. If presidents can commit crimes without consequences, they have no reason to follow the law. States have a right to prevent crime and enforce their own laws. Federal law doesn’t automatically beat state law unless the conduct is genuinely part of federal work. The Constitution lets Congress impeach presidents and allows prosecution after they leave office—suggesting the framers expected presidents to face consequences for breaking the law.

The Supreme Court’s 2024 decision favored presidential power, saying the president has a special role and needs immunity to do the job effectively. But that decision only addressed federal prosecution. State prosecution is still an open question.

The Constitution doesn’t clearly answer this question because the framers didn’t anticipate it. They created a powerful presidency but also built in ways to hold presidents accountable. They expected Congress to use impeachment and presumably expected criminal law to apply to presidents who broke the law. But they didn’t anticipate modern government, complex financial laws, or how much federal and state law overlap today.

What Comes Next

Judge Hellerstein’s reconsideration will require a clearer explanation of these constitutional principles. Whether Trump’s conviction stands, moves to federal court, or gets canceled, the decision will set a legal rule about whether presidents can be prosecuted by states.

If Trump’s conviction is canceled based on immunity, it means sitting or recent presidents are protected from state prosecution—even for things that are technically crimes under state law. Future presidents, knowing they’re protected, might have less reason to follow state law.

If his conviction stands and Trump’s removal motion is rejected, it means states can prosecute sitting presidents for state crimes. That principle could make it harder for presidents to do their job and could let state prosecutors use criminal law as a political weapon against presidents they oppose.

Both outcomes create problems, and both have legitimate constitutional arguments supporting them. Both will affect how the presidency works for decades to come.

A sitting president is a convicted felon under state law while his lawyers argue the Constitution never allowed that conviction to happen in the first place. The Second Circuit has ordered a new hearing on Trump’s argument. What Judge Hellerstein decides—and what higher courts do with that decision—will determine not only Trump’s fate, but whether presidents can be prosecuted by states.

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