With Donald Trump’s sentencing in his New York hush money case delayed until September following Tuesday’s decision by Judge Juan Merchan, the judge now faces the task of applying the Supreme Court’s new test for the limits of presidential immunity to the former president’s criminal conviction.
Trump in May was found guilty on 34 felony counts of falsifying business records related to a 2016 hush money payment to adult film actress Stormy Daniels in order to boost his electoral prospects in the 2016 presidential election.
Trump’s lawyers have argued that the judge should “set aside” the jury’s verdict in the case because the jury heard evidence during the trial that would have been protected by presidential immunity, based on Monday’s ruling by the Supreme Court that Trump is entitled to “at least presumptive immunity” from criminal prosecution for official acts taken while in office.
To rule on the defense’s request — which Judge Merchan plans to do by Sept. 6 — he will likely have to answer two key questions, according to former federal prosecutor Jarrod Schaeffer.
The first question is, would the Supreme Court’s decision have limited some of the evidence and testimony at trial?
Rather than argue that Trump’s conduct related to Daniels’ hush money payment constituted official acts of the presidency — an argument a federal judge rejected last year — Trump’s lawyers have focused on what they have called “official-acts evidence.”
Evidence including Trump’s social media posts in 2018, a government ethics disclosure, and phone records were cited as examples of evidence related to official acts that prosecutors emphasized during their closing arguments to the jury.
Prosecutors introduced some of Trump’s tweets about his former lawyer Michael Cohen to emphasize what they called a “pressure campaign” to prevent him from cooperating with investigators in 2018.
Former U.S. President and Republican presidential candidate Donald Trump speaks during a campaign event in Philadelphia, June 22, 2024.
Tom Brenner/Reuters
“Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories,” Trump wrote in an April 2018 tweet.
The Supreme Court’s decision on immunity included some protections for Trump’s communications — including tweets — because they “fall comfortably within the outer perimeter of his official responsibilities”; however, the ruling added that lower courts would need to determine if Trump was speaking in his official capacity as president or in an unofficial function such as a candidate for office or party leader.
Merchan declined to consider Trump’s last-minute challenge to some evidence, including the tweets, ahead of trial, determining that Trump’s request to exclude the evidence was “untimely.”
Defense lawyers also suggested that some testimony from Trump’s former White House communications director Hope Hicks would have been protected by immunity.
“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 during the trial regarding a 2018 conversation with then-President Trump about Stormy Daniels’ accusation of a long-denied 2006 sexual encounter with Trump.
Prosecutor Joshua Steinglass later described that testimony to the jury as “devastating,” saying that it “puts the nail in Mr. Trump’s coffin.”
According to Schaeffer, Hicks’ testimony poses a novel question to Merchan, who will need to weigh the Supreme Court’s limit on using “testimony or private records of the President or his advisers” as evidence at trial.
“Even if these are conversations about unofficial acts or purely private conduct, the President is having these conversations with official advisers or people who perform an official role in connection with the presidency,” Schaeffer said. “Would intruding on these conversations or allowing these records to be used cause the next president to hesitate before having these kinds of candid conversations with people that they need to rely on in order to execute their duties?”
In addition to prohibiting prosecution for official acts of a president, the Supreme Court’s ruling restricted the use of evidence related to official acts in cases related to a president’s private actions, including limiting evidence and testimony from a president’s advisers.
According to Justin Levitt, a constitutional law professor at Loyola Law School, the ambiguity of the Supreme Court’s decision about the use of such evidence presents an opportunity for Trump’s lawyers, despite a federal judge already determining that the hush money payment was “purely a personal item of the President.”
“It’s not entirely clear what they meant by the prohibition on the use of evidence,” Levitt said. “For as long and prominent an opinion as it was, it’s not very careful, and so it doesn’t provide a lot of guidance.”
Schaeffer said the second question Merchan will have to consider is, did the jury rely on that evidence and testimony when it reached a guilty verdict?
If Merchan determines that the evidence cited by prosecutors was protected by presidential immunity, he then needs to weight if the introduction of the evidence at trial was harmless or if it created a “structural error that rendered this trial utterly unfair,” according to Schaeffer.
“I don’t know the answer to that,” said Schaeffer. “I don’t know that anyone does, because I’m not sure that I’ve seen a situation where the Supreme Court has eliminated an entire class of otherwise permissible evidence from a prosecution after a trial has taken place and before sentencing.”
Some experts suggested that the evidence highlighted by Trump in a March pretrial motion — such as tweets about Cohen — were unlikely to have influenced the verdict.
“There’s just a mountain of other evidence that would support the jury’s verdict, so I don’t see it really having any appreciable impact, if any impact, on the New York case,” Pace University School of Law professor Bennett L. Gershman told ABC News.
However, prosecutors themselves placed emphasis on Hicks’ testimony when urging jurors to convict the former president — potentially creating an issue if the testimony is deemed to be protected by immunity.
“She basically burst into tears a few minutes — a few seconds after that because she realized how much this testimony puts the nail in Mr. Trump’s coffin,” Steinglass said in his closing arguments to jurors about Hicks’ testimony.
If Merchan opts to set aside the verdict, he could order a new trial without any of the contested evidence related to official acts, according to Levitt.
On July 1st, the Supreme Court of the United States made a landmark ruling in the criminal hush money case involving former President Donald Trump. The court decided to allow the release of Trump’s tax returns and financial records to a New York City prosecutor, marking a significant development in the ongoing legal battle.
The case revolves around allegations that Trump paid hush money to two women, Stormy Daniels and Karen McDougal, to keep them silent about their alleged affairs with him before the 2016 presidential election. The payments were made through Trump’s former lawyer, Michael Cohen, who pleaded guilty to campaign finance violations in connection with the payments.
With the Supreme Court’s ruling, the prosecutor now has access to Trump’s financial records, which could potentially shed light on any illegal activities or financial improprieties related to the hush money payments. This development has raised speculation about what may come next in the case.
One possible outcome is that the prosecutor may uncover evidence of criminal wrongdoing on Trump’s part, leading to potential charges being brought against him. This could have serious implications for Trump, as he could face legal consequences such as fines, probation, or even imprisonment if found guilty.
Another possibility is that the release of Trump’s financial records could reveal damaging information about his business dealings or personal finances, which could tarnish his reputation and impact his future political ambitions. This could also have implications for any potential civil lawsuits or investigations that may arise from the information uncovered.
Furthermore, the ruling could set a precedent for future cases involving presidential immunity and the limits of executive power. The decision by the Supreme Court to allow the release of Trump’s financial records demonstrates that no one is above the law, even a former president.
Overall, the Supreme Court’s ruling in Trump’s criminal hush money case has opened up a new chapter in the legal saga surrounding the former president. As the prosecutor delves into Trump’s financial records, the public can expect further revelations and potential legal actions in the coming months. This case serves as a reminder that accountability and transparency are essential principles in a functioning democracy, regardless of one’s position of power.
