Donald Trump's legal team skipped a key step in blocking his upcoming sentencing in New York, misrepresenting its efforts to appeal the hearing that is scheduled to take place 10 days before his inauguration.
New York state's Court of Appeals confirmed to Newsweek on Wednesday that it has not received any filing from Trump or his lawyers about the matter, even though Trump's team said the president-elect was "now simultaneously filing an application for an emergency stay to the New York Court of Appeals" in the team's Wednesday filing with the U.S. Supreme Court.
A spokesperson for the appeals court told Newsweek it's only been "radio silence" from the Trump team.
Newsweek reached out by email to Trump attorney John Sauer for comment.
Why This Matters
As part of the legal process, criminal defendants are supposed to file an appeal with a state's high court before taking the matter to the U.S. Supreme Court.
"In the traditional, normal legal process, the petition to the U.S. Supreme Court should only follow denial of relief by the New York Court of Appeals," the state's highest court, former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek.
"Intervention by the Supreme Court prior to sentencing in a state criminal case isn't something that occurs," he added.
Former federal prosecutor Neama Rahmani told Newsweek, "Trump has federal constitutional arguments related to presidential immunity, but normally defendants in state cases must exhaust state appeals before they can appeal to the United States Supreme Court."
He continued: "That allows the Supreme Court to consider whether there is an adequate and independent state law basis for the decision, for instance. That is why the Supreme Court rarely considers these types of interlocutory appeals."
What To Know
Trump's lawyers filed an emergency application to the Supreme Court late Tuesday, asking the Court to intervene and shut down his criminal "hush money" case in Manhattan before he returns to the White House. The filing came after an appellate court rejected his request on Tuesday, just 30 minutes after a brief hearing on his appeal.
Trump's sentencing is scheduled to take place Friday at 9:30 a.m. Last May, Trump became the first former president to be convicted of a crime after a Manhattan jury found him guilty on 34 felony counts of falsifying business records. The case involved a hush money payment of $130,000 to adult film actress Stormy Daniels, who alleged she and Trump had a sexual encounter in 2006, shortly for the 2016 election. Trump has denied that the encounter took place.
In the latest appeal, Trump's attorneys argued that he is entitled to full immunity from prosecution, including sentencing, now that is the president-elect. The claim is based on the Supreme Court's July decision that granted former presidents broad immunity for "official" acts.
"Forcing President Trump to prepare for a criminal sentencing in a felony case while he is preparing to lead the free world as President of the United States in less than two weeks imposes an intolerable, unconstitutional burden on him that undermines these vital national interests," Tuesday's filing states.
McAuliffe told Newsweek, "If the Trump legal team misrepresented to the Supreme Court the filing status of a contemporaneous filing in New York's highest court, that would pose both a credibility issue and a possible procedure hurdle for Trump."
He went on: "The upcoming sentencing is in a state criminal case, and the case should move through the state court system prior to any petition to the U.S. Supreme Court. The Trump team is playing all angles by attempting to seek relief both in the state system and in the U.S. Supreme Court."
What People Are Saying
Neama Rahmani, president of West Coast Trial Lawyers, told Newsweek: "The Supreme Court justices have thrown Trump a procedural lifeline before, though. We saw them expedite both Trump's 14th Amendment and presidential immunity appeals. It only takes four justices to agree to hear a case, and there are six conservatives on the Court. The fact that the Supreme Court asked prosecutors to respond to Trump's appeal is also a good sign for the president-elect."
Trump attorneys John Sauer and Todd Blanche told the Supreme Court in Tuesday's filing: "President Trump is already suffering grave irreparable injury from the disruption and distraction that the trial court abruptly inflicted by suddenly scheduling a sentencing hearing for the President-Elect of the United States, on five days' notice, at the apex of the Presidential transition. These harms continue to increase as the New York courts deny relief and the sentencing hearing approaches."
Michael McAuliffe told Newsweek: "Nothing about Donald Trump and the legal system is normal, so we'll all wait to see how the state and federal courts address his latest moves––moves that would be characterized as desperate in any other circumstance. With Trump, his many of his legal actions are desperate until they succeed."
Frank Runyeon, a New York courts reporter for Law360, wrote on X, (formerly Twitter): "All of this is puzzling why Trump's attorneys would file at SCOTUS, designating the NY Court of Appeals as the lower court, before ever filing with them. For ex: In Bush v. Gore, Florida's high court weighed in before SCOTUS grabbed it."
What's Next
With two days before Trump's sentencing hearing, the Supreme Court has not yet responded to his legal team's request. Meanwhile, Trump will be inaugurated for a second term on January 20.
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