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Months ago, roughly a week after the Supreme Court announced it would examine whether, and to what extent, a president is immune from criminal prosecution for his official acts, Donald Trump's lawyers injected an odd, longshot evidentiary issue into another of his criminal cases: the New York hush money trial.
Specifically, Trump's lawyers asked Judge Juan Merchan to stay the hush money trial until the Supreme Court issued its immunity ruling, or, at the very least, preclude the Manhattan district attorney's office from “offering evidence at trial of President Trump’s official acts,” a category Trump's team asserted contains social media posts and public statements Trump issued while president as well as Trump’s 2018 financial disclosure, as filed with the Office of Government Ethics. They even argued that testimony “relating to official-acts communications by President Trump” should be excluded.
Trump's motion to set aside the New York verdict might not be frivolous. Yet it is also not necessarily a slam dunk.
In response, the DA’s team was dubious, insisting Trump was “not raising presidential immunity for any of the purposes that the defense typically serves: namely, immunity from criminal charges or criminal process. Instead, defendant makes the peculiar argument that immunity can somehow preclude introduction of evidence of official presidential acts in a criminal proceeding, even if that evidence is otherwise relevant and admissible for criminal charges to which no immunity attaches.” And they contested that the statements at issue could be characterized as “official acts” in any event.
But ultimately, Merchan denied the motion as untimely, never grappling with the substance of Trump’s novel evidentiary argument, and the Trump trial proceeded with multiple instances of alleged "official-acts evidence" admitted. Trump's May 2018 tweets admitting that he reimbursed Michael Cohen for the hush money payments to Stormy Daniels? Check. Trump's 2018 federal financial disclosure revealing part of that same reimbursement? Check. His April 2018 tweets subtly pressuring Cohen not to flip and his ugly August 2018 tweets demeaning Cohen's lawyering skills once he pleaded guilty and comparing him unfavorably to the loyal Paul Manafort? Check, check and check.
And once that — and a tall heap of other documentary and testimonial evidence was admitted — a jury of 12 Manhattanites convicted Trump on all 34 counts of falsification of business records, in the first degree. Within minutes of the jury's announcing their verdict, sentencing was scheduled for July 11.
But as the saying goes, man plans, and the Supreme Court, which decided the presidential immunity case on Monday, laughed. Whereas the Manhattan DA politely characterized Trump's argument on official acts evidence as "peculiar," five Supreme Court justices (Justice Amy Coney Barrett did not join this part of the majority opinion) made it the law of the land.
Under Monday's holding, a prosecutor may not "invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge ... even when an indictment alleges only unofficial conduct." It didn't take long for Trump's lawyers to realize the Supreme Court's decision was not only a victory in the ongoing federal cases and in Georgia, but it also was a gift in the case legal experts — this one included — expected to be untouched by the court's ruling on immunity.
Team Trump now intends to ask Merchan to set aside the jury's verdict on the grounds he improperly allowed the jury to consider a slew of documents and testimony that they say reflects Trump's official acts. To allow full briefing and decision on their motion, they've also secured Merchan's agreement to postpone Trump's sentencing to Sept. 18 — and only if their motion fails. In the meantime, a Trump previously awaiting a sentence that many expected would include prison time is instead crowing on social media about his “TOTAL EXONERATION.”
But is it? In the wake of the Supreme Court's transformative opinion, Trump's motion to set aside the New York verdict might not be frivolous. Yet it is also not necessarily a slam dunk. Until Trump submits his motion later this month, we won't know the precise contours of what he considers "official-acts evidence." But even assuming Merchan erroneously admitted evidence reflective of Trump's "official acts" — a contention the DA undoubtedly will dispute — its admission likely will not warrant setting aside the verdict. That's because in evaluating requests to set aside the verdict because of claimed legal insufficiency of the evidence, a court looks at whether the evidence introduced at trial otherwise establishes each element of the charged crimes and there is no significant probability that the jury would have acquitted Trump had that evidence not come into the trial.
Can Trump overcome these legal hurdles, whether in Merchan's courtroom or on appeal? Watch this space.