New York Supreme Court Justice Juan Merchan is expected to rule by Nov. 12 whether President-elect Donald Trump can avoid sentencing later this month due to questions surrounding his immunity under the Constitution.
Trump’s attorneys argued that the U.S. Supreme Court’s decision in Trump v. United States, which granted different levels of criminal immunity for presidents’ official conduct, barred the use of certain evidence and witness testimony.
In his July response to the request to dismiss the indictment, Bragg argued that Trump had waited too long to raise some of his arguments about immunity. He also said a federal judge had deemed the conduct in question—an alleged payment to Clifford—outside of a president’s official duties.
“Nothing in the Supreme Court’s opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority,” Southern District of New York Judge Alvin Hellerstein said in September, when he refused a request to move the case out of state court on the basis of the Supreme Court’s immunity decision.
Bragg’s office also pointed Merchan to a portion of Hellerstein’s opinion remarking on Trump’s conduct after he entered office.
“Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a constitutional duty,” Hellerstein said. “Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty.”
Cohen paid Clifford before the 2016 presidential election, and Trump was charged for allegedly reimbursing Cohen after Trump had begun his first term of office. Trump maintained the payment was part of a retainer he had with Cohen. Prosecutors said it wasn’t actually part of a retainer but reimbursement for an illegal payment.
According to prosecutors, the Trump Organization illegally falsified documents in order to conceal the payments and in furtherance of another crime, namely, influencing the 2016 election.
In order to prove that, prosecutors heard testimony from former White House staff, as well as from both Cohen and Clifford. That testimony, as well as posts from Trump’s social media account, involved official acts protected under the Supreme Court’s immunity decision, Trump’s legal team said.
After trial, Trump’s attorneys filed a motion telling Merchan, “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 District Attorney of New York’s] grand jury proceedings as well as the trial.”
In Trump v. United States, the U.S. Supreme Court ruled that official acts—including certain communications to the public—may not be used as evidence against a president.
“It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge,” Chief Justice John Roberts said, writing for the majority.
Part of Merchan’s decision-making might take into account what’s known as “harmless error”—an error in the conduct of a trial that is considered not damaging enough to justify overturning a conviction.
In his July memo to Merchan, Bragg said, “And even if some of this evidence was improperly admitted, any error was harmless in light of other overwhelming evidence of defendant’s guilt.”
Bragg added that the Supreme Court’s decision on immunity didn’t preclude the evidence Trump was challenging—such as Trump’s tweets and testimony by former Trump adviser Hope Hicks. And even if it did, Bragg’s office argued, Trump waited too long to make objections based on immunity and should have made them during trial.
