NEW YORK — Donald Trump has asked the judge who oversaw his criminal hush-money trial in Manhattan to throw out his felony conviction now that the Supreme Court has granted Trump broad immunity from prosecution for official actions he took as president.
In a filing made public Thursday — the same day Trump had been initially set to be sentenced for his crimes — his lawyers argued that the recent Supreme Court ruling invalidated the verdict that the former president was guilty on charges of falsifying records related to the hush money during his 2016 presidential run.
The ruling, which was decided 6-3 along partisan lines and has drawn condemnation from some legal scholars, dealt a blow to one of Trump’s separate criminal cases in Washington, in which he is accused of plotting to overturn his 2020 election loss.
Applying that decision to the Manhattan case might be a longshot. The judge, Juan M. Merchan, has appeared skeptical of Trump’s immunity claims in the past. And even now, the Supreme Court’s ruling appears to have little direct bearing on the conduct for which he was convicted in Manhattan, where he was accused of misdeeds related to his campaign, not official acts during his presidency.
But Trump’s lawyers have argued that the Manhattan District Attorney’s Office built its case partly on evidence from his time in the White House. They note that, in the recent ruling, the Supreme Court held that prosecutors cannot cite most evidence involving official acts to prove accusations about private misconduct.
In the filing this week, Trump’s lawyers cited the trial testimony of two aides who worked for the then-president, including Hope Hicks, his communications director, about events in the White House. The testimony, the defense said, included “official communications.” They also argued that the Manhattan prosecutors should not have invoked tweets and other public statements Trump made as president.
“Because of the implications for the institution of the presidency, the use of official-acts evidence was a structural error under the federal Constitution that tainted” the case, wrote Trump’s lawyers, Todd Blanche and Emil Bove, who added, “These transgressions resulted in the type of deeply prejudicial error that strikes at the core of the government’s function.”
Within hours of the Supreme Court ruling July 1, the defense asked Merchan to delay Trump’s sentencing to consider setting aside the verdict. The sentencing had been scheduled for Thursday, just days before he is to be formally nominated for president at the Republican National Convention.
The district attorney, Alvin Bragg, consented, and the judge announced that he would rule on the motion Sept. 6. If a sentence “is still necessary,” the judge will impose it Sept. 18, he said. Trump faces up to four years in prison, although the judge could sentence him to as little as a few weeks in jail, or probation.
Bragg was the first prosecutor to bring charges against Trump, who now faces four criminal cases in four different jurisdictions. Yet with the other cases mired in delays, Bragg’s is all but certain to be the only one to make it to trial before Election Day.
In May, a jury of 12 New Yorkers convicted Trump of 34 felony counts of falsifying records to cover up a hush-money payment to a porn actor, Stormy Daniels, in the final days of the 2016 campaign. His fixer at the time, Michael Cohen, paid Daniels $130,000 to silence her story of a sexual liaison with Trump. When Trump repaid Cohen after he became president, he instructed his employees to lie on company paperwork to hide the nature of the reimbursement, the jury found.
Trump has falsely claimed that President Joe Biden has orchestrated the Manhattan case — a prosecution over which he had no authority — casting it as the product of a Democratic cabal. He has also claimed that he failed to receive a fair trial, an assertion that his lawyers echoed in the motion this week, arguing, “No president of the United States has ever been treated as unfairly and unlawfully as District Attorney Bragg has acted towards President Trump.”
But now, they argue, Merchan “has the authority to address these injustices, and the court is duty-bound to do so in light of the Supreme Court’s decision.”
In their motion to overturn the verdict, Trump’s lawyers drilled down on the prosecution’s questioning of Hicks, who, among other things, testified about a discussion she had with Trump in the White House after the hush-money deal with Daniels came to light in 2018. Hicks said that, after The Wall Street Journal broke the story, she spoke to Trump about “how to respond.” A prosecutor referred to some of her testimony as “devastating.”
The defense motion also highlighted the testimony of Madeleine Westerhout, a former director of Oval Office operations, who told the jury about scheduling a February 2017 meeting between Trump and Cohen, where Cohen says they discussed reimbursement for the hush-money payment. Her testimony, the defense said, included “observations of President Trump exercising presidential authority.”
Bragg’s prosecutors will be likely to argue that Hicks and Westerhout were testifying about personal conversations, not official acts taken by a president. Simply because a meeting took place in the White House does not make it an official act, they might say.
A federal judge has already endorsed that view. Before the trial, Trump tried to move the case to federal court — arguing that the evidence centered on his official acts as president — but the federal judge rejected that argument, noting that the evidence against Trump’s “does not reflect in any way the color of the president’s official duties.”
In an opinion last year, the judge, Alvin K. Hellerstein, wrote that “hush money paid to an adult film star is not related to a president’s official acts.”
Bragg’s prosecutors will probably cite that ruling when they respond to Trump’s motion. And to undercut the defense’s argument that Trump’s tweets and public statements as president should be eliminated as evidence, the prosecutors might point to the Supreme Court opinion itself. In a footnote, Chief Justice John Roberts wrote that a “prosecutor may point to the public record” to illustrate an argument.
The prosecutors might also argue that Trump missed his window to invoke presidential immunity. He raised the issue in March, just days before the trial was set to start, seeking to delay it until after the Supreme Court ruled and to exclude some evidence that touched on his time in office. But Merchan rejected the bid, saying it was untimely.
Noting that Trump had already raised the issue of presidential immunity in the Washington case, Merchan called the eleventh-hour request “unjustifiable.”
“The circumstances, viewed as a whole, test this court’s credulity,” he added.
Now, Trump’s lawyers are pinning blame on Bragg’s prosecutors. “Rather than wait for the Supreme Court’s guidance, the prosecutors scoffed with hubris at President Trump’s immunity motions and insisted on rushing to trial,” they wrote in the filing this week.