President Trump’s lawyers on Thursday urged a New York appellate court to throw out his conviction on 34 felonies tied to a 2016 “hush money” payment to an adult film star.
They argued that the jury was given flawed instructions, allowing them to consider violations of federal election law as part of their determination in the case, calling it an “obvious ground for reversal.” Mr. Trump has long argued that the federal law, known as FECA, preempts state prosecution.
“All of the payments that are issued in this case, whether it be the payments to [adult film star Stormy Daniels], other payments to two other folks, those were payments that were deemed to be illegal contributions or expenditures under FECA,” said Mr. Trump’s attorney, Robert Giuffra.
Steven Wu, a lawyer for Manhattan District Attorney Alvin Bragg, countered that a federal court has twice rejected the claim that FECA preempted New York’s prosecution of Mr. Trump.
“This court should reach the same conclusion here,” Wu said.
Giuffra and Wu were interrupted frequently by a five judge panel that pelted them with questions picking apart their arguments.
A unanimous jury convicted Mr. Trump in May 2024 for his part in a scheme to falsify business records related to reimbursements made to Michael Cohen, his attorney at the time. Cohen had paid $130,000 to adult film star Stormy Daniels, days before the 2016 election, in exchange for her silence about an alleged sexual encounter with Mr. Trump years earlier. Mr. Trump has denied the allegations.
The jury was asked to consider if Mr. Trump falsified business records, counts that by themselves would have been misdemeanors, and if he intended to commit any other crime in doing so, including bank fraud, tax fraud or the violations of FECA — any of which elevated the charges to felonies. They did not have to be unanimous in what other crimes they thought he intended to commit.
Giuffra, the powerful co-chair of the white shoe firm Sullivan & Cromwell, argued that they should have been required to be unanimous on that element of the felony.
Wu noted that the trial judge in the case asked Mr. Trump’s attorneys about that and they did not believe it was required under the law. Instead, they asked the judge to include that directive “in his discretion because of the importance of the case,” Wu said, paraphrasing Emil Bove III, who was one of Mr. Trump’s trial lawyers.
The trial judge, Juan Merchan, declined.
“What you’re asking me to do is change the law, and I’m not going to do that,” Merchan said at the time.
Mr. Trump’s attorneys in the case have changed since the 2024 trial — one former defense attorney, Todd Blanche, is now U.S. attorney general, and Bove is now a federal judge — but his new team of personal lawyers has continued to echo the arguments he made throughout the trial.
An Oct. 16 filing by Giuffra began with a line that Mr. Trump himself frequently said and posted on social media: The case, “should have never been brought.”
A spokesman for Mr. Trump’s legal team said a 2024 Supreme Court decision related to presidential immunity, “the federal and New York state Constitutions, and other established legal precedent mandate that the Witch Hunt perpetrated by the Manhattan D.A. be overturned and dismissed.”
“President Trump will continue defeating Democrat weaponization at every turn,” the spokesperson said.
Lawyers for Bragg have characterized the 2016 “hush money” plan as “a conspiracy to defraud the American public and government regulators.”
“The criminal charges here arose from [Mr. Trump’s] unofficial, non-presidential conduct—as multiple courts have already found,” they wrote in a July brief.
The arguments came a week after the death of a judge who was presiding over a yearslong parallel effort by Mr. Trump to move the case from state to federal court.
The judge, Alvin Hellerstein, repeatedly rejected Mr. Trump’s arguments, and was particularly scathing in his response to Mr. Trump’s claim that the reimbursements to Cohen were related to his official work as president.
“Reimbursing Cohen for advancing hush money to [Stormy Daniels] cannot be considered the performance of a constitutional duty,” Hellerstein wrote. “Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty.”
On Thursday, the two sides also argued over whether tweets shown at trial and testimony of former White House communications director Hope Hicks fell under presidential immunity.
One judge on the panel said Hicks’ testimony, which described a conversation about the Stormy Daniels allegations after they became public, may have fit in the “gray area of what’s in the outer sphere of presidential duties.”
Asked for his thoughts after the arguments, Giuffra said, “I think it went well.”
“We should definitely win,” he said.
