Just one month after a New York jury became the first former president to find former President Trump guilty, his conviction in the hush money case is already in jeopardy following the Supreme Court’s ruling on presidential immunity.
Trump’s criminal sentencing was scheduled for next week, but his lawyers clung to the new ruling as leverage to try to get it overturned. Less than 48 hours after the Supreme Court handed down its decision, Judge Juan Marchand abruptly stayed the ruling, postponing it until September.
But Marchand cautioned in his announcement on Tuesday that he would only move forward “if it is still necessary.”
The Supreme Court ruled that former presidents enjoy at least presumptive immunity for all official conduct, handing Trump one of the biggest legal victories yet in a criminal prosecution and almost certainly making it possible for him to avoid trial on the remaining charges before the November election, which Trump hopes will help him retake the White House and put an end to his own lawsuits.
Perhaps equally notable is that the ruling has given Trump new ammunition in his efforts to erase his only conviction.
“The biggest hurdle is that the Supreme Court’s presumption puts a burden on prosecutors, but it’s not an insurmountable burden,” said Cheryl Bader, a former federal prosecutor and Fordham University law professor.
In May, a New York jury found Trump guilty on all charges that he concealed a $130,000 hush money payment to porn actress Stormy Daniels in October 2016 and made false statements in New York business records with the intent to illegally influence that year’s presidential election.
Rather than claim immunity from the 34 actual charges he faces of falsifying business records, Trump is focusing on the trial evidence used to prove those charges. The former president argues that the jury’s verdict should be tossed out because some of the evidence presented to the jury was precluded under the Supreme Court’s new standards.
Chief Justice John Roberts, joined by four other justices in a ruling on Monday, made clear that official acts cannot be used as evidence, even if the charges are rooted in unofficial conduct.
“Allowing prosecutors to ask or suggest questions for a jury to explore about official conduct for which the president is immune would create a unique risk that jury deliberations would be prejudiced by jurors’ views of the president’s policies and record in office,” Roberts wrote.
But he warned that “prosecutors may, of course, point to public records to show that the president performed official duties.”
Trump’s team alleges that Manhattan District Attorney Alvin Bragg, a Democrat, improperly turned over as evidence an array of public documents, including Trump’s phone records, tweets, government ethics filings and key testimony from trusted aides.
“under Trump“This evidence of official conduct should never have been presented before the jury,” lawyers Todd Blanche and Emile Bove wrote in a letter to the judge, citing the Supreme Court’s decision.
In particular, the former president’s defense team cited tweets from Trump’s time in office that were shown to the jury attacking the prosecution’s star witness, Michael Cohen.
In his Supreme Court decision, Justice Roberts noted that “most of the President’s official communications are likely to fall well within the scope of his official responsibilities.”
“But there may be circumstances in which a president may speak in an informal capacity, such as as a candidate for office or as a party leader, despite the importance of that position,” Roberts warned.
Other evidence at issue includes transcripts of calls between Trump and Cohen when Trump was president, government ethics documents in which Trump mentioned the hush money arrangement in 2018, and testimony from Hope Hicks, a former Trump adviser.
Jeffrey Cohen, a former federal prosecutor and associate professor at Boston University School of Law, said Hicks’ testimony may raise some doubts, especially given that her conversations with Trump took place in his official capacity and were not available to the public.
“The question then is, how significant were those statements to Hope Hicks to the conviction?” Cohen said.
Hicks testified that she served as a Trump aide during the 2016 election, a time when scandal rocked Trump’s campaign to take the White House. She also described a conversation she had with Trump in 2018 in which Trump suggested Cohen paid Daniels out of goodwill, but Hicks doubted that and said she was glad the story about the money came to light after he won the election. Hicks broke down in tears on the stand shortly thereafter.
In their closing arguments, prosecutors called Hicks’ testimony against her former boss “devastating” and suggested it would “put the nail in Trump’s coffin” – something that could come back to haunt them for years to come.
“The fact that the government used that evidence in its closing argument, or the extent to which the government relied on that evidence when making its case to the jury, will be a factor the court considers in determining how significant that evidence was, because the court will assume that the government will present its strongest evidence in closing argument,” Cohen said.
Trump’s legal team has until July 10 to argue that Marchan is “incompetent to stand trial.” Prosecutors say the argument is “without merit” but have not opposed the delay.
Marchant previously tried to raise this argument before Trump’s trial, but the defense dismissed it as premature.
The former president waived his right to a defense early in the case when he attempted (and later abandoned) to have the case moved from state court to federal court.
“I don’t see how the immunity ruling would have any real impact on the verdict,” Bader said. “Even if the Supreme Court granted blanket immunity, falsifying private business records to bribe porn stars would not even be outside the scope of a president’s official duties.”
“I think this is the extreme end of presidential responsibility,” she added.
