President-elect Donald Trump’s criminal conviction should be tossed out because he was elected president, his lawyers say.

In a filing Wednesday, defense attorneys Todd Blanche and Emil Bove — both slated to take on senior roles under Trump in the federal Department of Justice — wrote to the judge who presided over Trump’s criminal trial that his conviction must be set aside.

“Immediate dismissal of this case is mandated by the federal Constitution, the Presidential Transition Act of 1963, and the interests of justice, in order to facilitate the orderly transition of Executive power following President Trump’s overwhelming victory in the 2024 Presidential election,” Blanche and Bove wrote.

Trump was convicted in May of 34 counts of falsifying business records in connection with a coverup of a “hush money” payment made before his first election to office in 2016. But he has not been sentenced. That crucial hearing was postponed twice: first to allow his team to seek dismissal based on a July Supreme Court presidential immunity decision, and later to avoid interrupting the campaign for president.

Now that Trump has won the election, his attorneys are arguing that means he can’t be punished for his crimes, even before he takes office. 

“Just as a sitting President is completely immune from any criminal process, so too is President Trump as President-elect,” they wrote. “Federal law provides for the ‘orderly transfer of Executive powers in connection with the expiration of the term of office of a President and the inauguration of a new President.'”

Trump’s lawyers had previously indicated in letters to the Justice Juan Merchan and Manhattan District Attorney Alvin Bragg that they intended to pursue this latest dismissal of his case. On Tuesday, prosecutors wrote to the judge to say while they won’t oppose postponing sentencing — potentially even until after Trump’s term in office is complete in 2029 — they do intend to fight dismissal of the case.

“Consideration must be given to various non-dismissal options that may address any concerns raised by the pendency of a post-trial criminal proceeding during the presidency, such as deferral of all remaining criminal proceedings until after the end of defendant’s upcoming presidential term,” prosecutors wrote.

Immediately after a unanimous jury found Trump guilty in May, he swore he’d fight the conviction. 

The jury found that Trump committed 34 felonies as part of a plan he signed off on, in which a series of reimbursements to Michael Cohen, his former attorney and fixer, were portrayed as payments for legal services. They were in fact repayments for a $130,000 wire payment Cohen made to the lawyer of an adult film star days before the 2016 presidential election. The payment was made so that the actress, Stormy Daniels, would refrain from going public about an alleged sexual encounter with Trump just before voters were heading to the polls.

Trump entered a not guilty plea in the case, denies any wrongdoing and says he never had sex with Daniels.