Attorneys for former President Donald Trump have filed a motion to exclude certain evidence in his criminal case in New York and adjourn trial as the Supreme Court is set to hear arguments over President Trump’s presidential immunity defense in a separate criminal case.
President Trump has been indicted in four separate jurisdictions on a total of 91 counts and has raised presidential immunity as a defense several times.
In New York, where he is set to go to trial on March 25, he was charged with 34 counts of falsifying business records. In Washington, he was charged with four counts of obstruction and conspiracy for his actions on Jan. 6, 2021, and the case has been appealed all the way to the high court.
The Supreme Court has set arguments for April 25, and defense attorneys in New York have said the March 25 trial should be postponed until the high court issues a decision.
The defense also argued that prosecutors with Manhattan District Attorney Alvin Bragg’s office shouldn’t be able to use evidence from President Trump’s time in office.
2018 Statements
Prosecutors have argued they should be allowed to present evidence of a “pressure campaign” President Trump allegedly initiated in 2018 against Michael Cohen, which the defense described as “fictitious.”Mr. Cohen was previously President Trump’s personal lawyer and had an executive position in the Trump Organization, but he later became a vocal critic of his former boss and made several public claims that led to two investigations.
Mr. Cohen claimed that President Trump inflated his net worth to obtain better business deals, leading to an investigation by New York Attorney General Letitia James that resulted in a civil fraud petition. A New York judge recently issued a judgment requiring President Trump to pay more than $350 million in penalties, and President Trump is now appealing the decision.
Mr. Cohen had also claimed that then-candidate Trump asked him to pay off an adult actress alleging an affair to prevent negative press during his 2016 campaign. Mr. Bragg’s investigation resulted in an indictment charging President Trump only for “falsifying business documents” but his statements and court filings have framed the case as one about election integrity.
Based on the prosecutors’ court filings, they will use public statements and Twitter posts President Trump made in 2017 and 2018 as evidence that President Trump “pressured” Mr. Cohen into silence.
The statement includes Twitter posts about Mr. Cohen’s refusing to “break” and “make up stories” in order to obtain a plea deal. At the time, Mr. Cohen was still President Trump’s attorney for personal matters, and President Trump had given media statements refuting claims that he used campaign money to quash a news story.
Given the timeline, the statements would have been made in President Trump’s “official capacity as the nation’s Chief Executive,” the motion reads, and the defense asked the court to prohibit it.
Untested Legal Territory
The parameters of President Trump’s presidential immunity have been debated in several jurisdictions already and will soon be heard in the Supreme Court.“This area of law is evolving in real time,” Trump attorneys in New York said.
The Supreme Court limited their review to the question whether and to what extent “a former President [enjoys] presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
Supreme Court precedent established presidential immunity from civil lawsuits, but the court hadn’t previously addressed presidential immunity in criminal prosecutions. A decision from the Supreme Court is likely to affect all four of President Trump’s criminal cases.
A secondary issue is the line between personal and official acts during President Trump’s tenure, and a possible separation of actions he can be prosecuted for and actions covered by presidential immunity. A federal appeals court recently ruled that several civil cases against President Trump related to Jan. 6 could go forward, finding that the actions cited personal acts of a candidate rather than official acts of a president. The question whether this immunity applies to former presidents is also new territory.
The high court decision would inform and potentially limit the evidence allowed in the New York case, defense attorneys said.
“Following the Supreme Court’s guidance ... the Court should hold a hearing outside the presence of the jury to identify and preclude documentary and testimonial official acts evidence based on presidential immunity,” the motion reads.
