Former President Donald Trump asked a New York judge to set aside his hush money trial conviction. Before the Supreme Court’s presidential immunity ruling, such an endeavor may have seemed hopeless, but now Trump has a more serious argument.
The July 1 high court ruling from Republican-appointed justices already grabbed headlines for knocking out portions of former President Donald Trump’s federal election interference indictment, helping shield him from another 2024 criminal trial, and potentially emboldening him in a future presidency.
But the ruling may be an even bigger gift to the presumptive Republican presidential nominee because one portion of it, which deals with trial evidence, raises questions about the criminal trial Trump already lost.
Trump was convicted in Manhattan on May 30 of 34 counts of falsifying business records in order to conceal a conspiracy to unlawfully interfere in the 2016 presidential election through a scheme involving hush money paid to a porn star.
In his Monday motion, Trump said improper evidence tainted not only the trial but also the grand jury proceedings that resulted in his indictment.
“In order to vindicate the Presidential immunity doctrine… the jury’s verdicts must be vacated and the Indictment dismissed,” according to the motion.
Judge Juan Merchan delayed Trump’s scheduled July 11 sentencing more than two months, until Sept. 18, to give defense lawyers and prosecutors time to file written arguments on whether the convictions can stand.
Andy Grewal, an Iowa University law professor, told USA TODAY that the delayed timeline suggests Merchan is taking the issue seriously, especially when juxtaposed with Merchan’s quick handling of some of the earlier motions in the case.
“That doesn’t tell me which way he will rule, but that’s a good sign for the defense,” Grewal said.
‘Nail in Mr. Trump’s coffin’: Why trial testimony could be a problem
During the trial, Trump lawyer Emil Bove objected to testimony from former Trump aide Hope Hicks about statements by Trump while he was president.
Prosecutor Matthew Colangelo responded that the evidence was permissible, saying that “evidence of otherwise immune conduct is nonetheless admissible in a trial regarding criminal conduct for non-immune acts.”
However, five members of the Supreme Court’s six-person conservative wing appear to have now said the opposite when it comes to presidential immunity.
“If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated,” wrote Chief Justice John Roberts in a portion of the majority opinion that was joined by all the Republican-appointed justices except Justice Amy Coney Barrett.
In their letter to Merchan following that ruling, Trump’s lawyers pointed to Hicks’ testimony that Trump, while president, asked her how a 2018 news report on his former lawyer Michael Cohen’s 2016 hush money payment to porn star Stormy Daniels “was playing.” Cohen paid the money less than two weeks before the 2016 election to keep Daniels silent about an alleged affair with Trump.
“And I think Mr. Trump’s opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election,” Hicks testified.
“[T]his testimony puts the nail in Mr. Trump’s coffin,” prosecutor Joshua Steinglass later told jurors in his closing argument.
Steinglass said the testimony showed Trump’s main motivation for the payment was to help his 2016 election chances rather than shield his wife Melania Trump from Daniels’ allegations that she had an affair with the real estate mogul. That bolstered the prosecution’s argument that the payment was a campaign finance violation.
Ryan Goodman, a New York University law professor, said on the Just Security Podcast that he views the Hope Hicks testimony as Trump’s strongest argument on this issue, though not a surefire argument.
“She’s in her role, you might say, operating as crisis management for the White House,” Goodman said. “Is the holding of this U.S. Supreme Court opinion saying that there is in fact a plausible claim that that is evidence derived from official conduct of the president and therefore cannot be used?” Goodman asked.
Other evidence under attack
The Hicks testimony isn’t the only evidence Trump’s lawyers are attacking. They have also targeted social media posts by Trump while he was president, records on calls Trump had at that time, and a government ethics form in which Trump said Michael Cohen incurred expenses in 2016 and was “fully reimbursed” in 2017.
The ethics form was relevant to the charges because prosecutors said Trump falsified records by mischaracterizing reimbursements to Cohen for the Daniels hush money payment as monthly expenses under a legal retainer agreement that didn’t actually exist. Steinglass said in his closing statement that the form was an admission “that the payments to Cohen were reimbursements.”
Defending the conviction: Was it official?
Prosecutors have at least a few lines of attack. They may say some or all of that evidence doesn’t constitute official conduct under the ruling. For instance, they could argue that calls by Trump about his business affairs or the payment to Daniels aren’t rendered official conduct simply because he was president.
But some of the language from the high court’s opinion is favorable to Trump. For instance, Roberts wrote that while there may be instances of unofficial public speech by a president, “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”
An appeal that could go back to the Supreme Court
Prosecutors could also argue that any impermissible evidence under the high court’s ruling was a harmless error that shouldn’t upend the conviction. One challenge with that argument is it may require them to eat their own words when it comes to statements to the jury about the evidence’s significance.
But even if Judge Merchan – or, ultimately, an appellate court – deems the evidence harmless, the Supreme Court could say a different standard applies in the newly-charted waters of presidential immunity.
Roberts states in the immunity ruling that questions about whether the president may be held liable need to be addressed before trial because even the burden of a trial may render a president “unduly cautious in the discharge of his official duties.” He also says a jury’s inspection of the president’s motivations for official actions would “seriously cripple” the exercise of official duties.
That could give rise to arguments that no evidence error when it comes to presidential immunity is harmless.
“Maybe the analogy is, well, the admission into evidence is itself the harm to the presidency – there is no harmless error exception,” Grewal said. “Who the hell knows?”
Was the immunity issue raised in time?
Prosecutors may also say Trump waived the issue by failing to raise his objections earlier.
In early April, Merchan rejected a request by Trump to delay the trial and to exclude evidence based on president immunity, stating that Trump knew of the immunity question for several months and was raising it too late. Merchan pointed to a New York law that requires pre-trial motions to be filed within 45 days of a defendant’s arraignment. Trump was arraigned about a year earlier.
However, Trump’s legal team is arguing that the New York law doesn’t apply to motions seeking to keep evidence out of a trial.
Contributing: David Jackson
