How immunity could complicate Trump’s hush money conviction

Former President Donald Trump asked a judge in New York this week to factor the Supreme Court’s ruling on presidential immunity into his hush money trial with the aim of having his conviction tossed out.

While the high court’s ruling that presidents have some immunity from criminal prosecution was related to a separate case in Washington, D.C., Trump’s attorneys plan to argue that the decision has bearing on his Manhattan trial.

The attorneys wrote in a preliminary letter to Judge Juan Merchan that certain witness testimony and social media posts should not have been used during the trial based on the Supreme Court’s ruling that a president’s immunized official acts cannot be used as evidence in a prosecution.

“Under [Trump v. United States], this official-acts evidence should never have been put before the jury,” Trump’s attorneys wrote.

The attorneys are set to provide specific details to the court about the evidence they believe was improperly used by July 10. Below is a look at what evidence Trump’s team is expected to highlight, as well as a look at how the coming months will play out in the case.

White House staff testimony

Hope Hicks, a former Trump spokeswoman, testified during the hush money trial about a conversation she had with Trump in 2018 in which they strategized about a story that broke in the Wall Street Journal about porn star Stormy Daniels.

Madeleine Westerhout, a former Trump White House aide, also testified about how she thought Trump felt about the 2018 story and about how she witnessed Trump sign checks from his Oval Office.

Trump was charged with falsifying records of a payment his former attorney Michael Cohen made to Daniels in the lead-up to the 2016 election to conceal an affair Trump allegedly had with her.

Prosecutors used Hicks’s and Westerhout’s testimony to support their argument that Trump knowingly participated in a cover-up of the payment and that doing so illegally undermined the 2016 election.

While their testimonies were less relevant to the charges than that of some other witnesses, prosecutors still found Hicks and Westerhout pertinent enough to call them to the stand. In his closing statement, prosecutor Joshua Steinglass described Hicks’s testimony as “devastating.”

The Supreme Court did not address every conceivable presidential act, but it said acts could be divided into three buckets: official acts that are absolutely immune from prosecution, official acts that are presumptively immune from prosecution and require adequate rebuttals from prosecutors, and unofficial acts that are not immune at all. The high court gave guidance on certain acts that suggests Trump’s communication with his White House staff could be considered official conduct.

Absolutely immune activity is entirely off limits in criminal cases; presidents cannot be prosecuted for them and they cannot be used as evidence in criminal proceedings, according to the Supreme Court.

Social media posts in 2017

Whether a president commenting to the general public is an official act is among the “difficult questions” lower court judges must now answer, the Supreme Court ruled. The high court noted judges like Merchan will have to engage in a “fact-specific analysis” to reach their conclusions.

Trump’s attorneys signaled that they plan to argue that social media posts Trump made in 2018, while he was president, constituted statements to the public that are immunized official acts and that prosecutors therefore should not have used them in the trial.

Prosecutors used several of Trump’s X posts from 2018 as evidence, including one in May 2018 about how Trump’s company had a retainer with Cohen and one from August 2018 showing Trump had soured on his former attorney.

What’s to come

When Trump’s attorneys asked Merchan this week for permission to lay out their immunity case, prosecutors for Manhattan District Attorney Alvin Bragg responded that they believe Trump’s arguments for scrapping the trial are “without merit.”

Merchan agreed to allow Trump’s attorneys to submit a detailed memorandum to the court about the evidence they believe was improperly used by July 10, and the judge gave prosecutors a deadline of July 24 to submit their responses.

Merchan’s decision to review Trump’s immunity arguments and prosecutors’ counterpoints also forced the judge to push back Trump’s sentencing for his conviction.

Merchan said he will decide on whether to throw out Trump’s guilty verdict on Sept. 6 and then he will sentence Trump on Sept. 18 if it is “still necessary.”

Merchan’s decision to entertain the immunity claims does not necessarily mean the judge will find that a few items of inappropriately used evidence is worth discounting the whole trial. The case was largely focused on a payment to Daniels that occurred before Trump took office. Moreover, a federal judge previously ruled when Trump attempted to move his case to federal court that Bragg’s charges involved private acts, including Trump signing checks in 2017, that are not protected by immunity.

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Jonathan Turley, a law professor at George Washington University, predicted that Merchan, who has at times shown little patience with Trump’s defense team, would deny Trump’s request. Turley also said, however, that a denial from Merchan would discredit critics of the Supreme Court’s decision who argued it gave presidents a pass to break the law.

“Given Judge Merchan’s record in the case, it is fair to assume that he will decline a new trial,” Turley wrote on X. “However, the coming review highlights the hyperbolic claims about the opinion as protecting any and all conduct of a president.”