Judge appears skeptical of Trump’s latest bid to nix his hush money
conviction
[February 05, 2026]
By MICHAEL R. SISAK and LARRY NEUMEISTER
NEW YORK (AP) — A federal judge appeared poised to again reject
President Donald Trump’s bid to erase his hush money conviction,
slamming his lawyers Wednesday for legal maneuvers he said amounted to
taking “two bites at the apple.”
Directed by an appeals court to take a fresh look at the matter, Judge
Alvin K. Hellerstein was at turns inquisitive and incredulous during
nearly three hours of arguments as Trump seeks to move his case from the
state court where it was tried to federal court, where he can ask to
have it thrown out on presidential immunity grounds.
Hellerstein sparred with Trump lawyer Jeffrey Wall throughout the
proceeding in Manhattan federal court and suggested the whole exercise
was moot because the president’s legal team had waited too long after
the historic May 2024 verdict to seek federal court relief. He said he
would rule at a later date.
The judge acknowledged that the U.S. Supreme Court’s ruling about a
month after the verdict that presidents and former presidents cannot be
prosecuted for official acts had raised novel legal questions that had
not previously been considered in the courts.
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.
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President Donald Trump speaks to reporters after signing a spending
bill that ends a partial shutdown of the federal government in the
Oval Office of the White House, Tuesday, Feb. 3, 2026, in
Washington. (AP Photo/Alex Brandon)
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.
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