SCOTUS Ruling on Presidential Immunity Could Sink NY Case Against Trump

The Supreme Court's decision in Trump v US, according to criminal defense attorney David Fischer, eviscerates NY County District Attorney Alvin Bragg's case against Donald Trump.

This is a guest post by David W. Fischer, a Maryland and D.C.-based criminal defense attorney and the senior partner at Fischer & Putzi, P.A.  Most recently, Fischer defended January 6 defendant Thomas Caldwell, who was acquitted on seditious and other conspiracy charges.

An interesting legal battle is brewing in the New York “hush money” case against Donald Trump.  In late May, a jury convicted Trump of 34 felony counts of falsifying business records, which I explained here. 

New York State Supreme Court Justice Juan Merchan has scheduled sentencing for September 18th.  But two days earlier, Merchan will rule on Trump’s motion to dismiss the indictment in toto or, alternatively, to throw out the jury’s verdict and grant a new trial based upon the prosecution’s illegal use of immunized evidence during the trial. Trump’s motion stems from the U.S. Supreme Court’s seminal decision in Trump v. United States, which held that Presidents have immunity from criminal prosecution for their “official acts,”

Trump’s Immunity Arguments

In Trump, the Supreme Court ruled that prosecutors cannot use “official acts” evidence against a former President.  The Supreme Court’s definition of what constitutes an “official act” is broad.  Even conduct in the “outer perimeter” of the President’s duties is “presumptively immune” and cannot be used in a trial “even on charges that purport to be based only on his unofficial conduct.”  

District Attorney Alvin Bragg has asked Judge Merchan to reject Trump’s request, claiming that the New York charges relate only to “unofficial” acts by Trump and, thus, are not immune from prosecution.  Bragg’s prosecutors, however, introduced substantial evidence at trial that clearly falls under the rubric of “official acts.” (The alleged crime took place when Donald Trump was president.)

Most notably, prosecutors elicited testimony from Hope Hicks, Trump’s former communications director, regarding 2018 conversations wherein Trump suggested that “hush money” payments were disguised so as not to affect the 2016 election.  These conversations took place in the context of Trump’s response to media stories regarding Michel Cohen, Trump’s former attorney.  Prosecutors hammered this testimony home to jurors as proof that Trump’s payments were made to skirt campaign finance laws—and, thus, that Trump falsified records for the purpose of committing a separate crime—and not to protect his family from embarrassment.  

Additionally, prosecutors used Cohen’s testimony regarding his conversations with Trump related to investigations by the Federal Election Commission, other prosecutors, and members of Congress that touched upon the payments.  Prosecutors also used Cohen’s text messages wherein it was claimed that Trump had conversed with his Attorney General regarding the payments.  Trump disputes Cohen’s testimony.  Regardless, Bragg’s argument that Trump’s White House conversations with Hicks, Cohen and others were allegedly “motivated” by a purely “private purpose” was rejected by the Supreme Court in Trump.

Bragg’s main problem is that his prosecutors heavily emphasized official-acts evidence to the jury in closing argument.  In particular, prosecutors used immunized conversations from Hicks and others to bolster Cohen’s credibility, and even had Cohen testify about Trump allegedly offering pardons for nefarious purposes. 

These conversations are immunized because, as Chief Justice Roberts wrote in Trump, to allow them to be used against a former President would “pose [a danger] of intrusion on the authority and functions of the executive branch.”  To paraphrase the Chief Justice, an “official act” is not a “private act” just because a prosecutor characterizes it as such.

Harmless error?

Bragg argued in his filing that even if immunized testimony was wrongly admitted at trial, the evidence was so overwhelming against Trump that the Court’s mistake was “harmless error,” i.e., the jury would have convicted had the disputed evidence been excluded.  This argument is flawed, however, as the bulk of the disputed testimony and evidence was used by prosecutors to bolster the credibility of Michael Cohen.  Without Cohen, prosecutors likely could not prove their case, as Trump’s former “fixer” provided the proof that Trump acted with criminal intent. 

In other words, Cohen’s testimony provided the jury a basis to find that Trump’s alleged “falsification” of business records was done with the purpose of committing another crime, e.g., to evade federal campaign disclosure laws.  Hicks’s testimony, which is clearly immunized and was prominent in their closing argument before the jury, is particularly problematic for Bragg.

Moreover, there is a strong argument that the “harmless error” standard does not apply to Trump’s case.  Trump’s attorneys wrote: “Because of the implications for the institution of the Presidency, the use of official-acts evidence was a structural error under the Constitution,” and thus, the trial was tainted.  In other words, Judge Merchan was required, unlike in typical cases where judges make evidentiary rulings “on the fly” during trial, to hold a pretrial hearing to determine what evidence was immunized and thus inadmissible under Trump. 

While not specifically mandated by SCOTUS’s immunity decision, it would seem odd that courts would allow in all sorts of immunized testimony, including sensitive conversations with the President, only to make an after-the-fact determination that the immunized evidence was “harmless.”  Additionally, the use of immunized testimony at trial could force a former President to use protected official-acts testimony to rebut or put in context the official-acts evidence introduced by prosecutors.  By failing to rule on the admissibility of arguably official-acts evidence before trial, Judge Merchan likely committed reversible error.

Delay is a Defendant’s Best Friend

Even if Merchan ultimately rules against him, Trump may have already won a victory in that, at a minimum, his sentencing will likely be pushed back until after the November election.  That is, Trump can use his immunity arguments to seek review of Judge Merchan’s rulings in federal court, which will stop the New York case in its tracks for months.  That’s the reason why Bragg did not oppose Trump’s request to delay his September sentencing date until after the November election.

Defense attorneys love delays, which almost always inure to the benefit of their clients.  Assuming Trump is re-elected, the New York case will evaporate, either through the appellate or political process