The Manhattan justice weighing the fate of Donald Trump's guilty conviction in New York could potentially throw out the verdict if he decides jurors should never have heard certain evidence about the president's conduct as president — or the judge could uphold the verdict by deciding that evidence would have made little difference, according to legal experts.
In doing so, New York Supreme Court Justice Juan Merchan may become one of the first judges to decide exactly how a landmark Supreme Court presidential immunity ruling could limit what evidence jurors can hear concerning a president's official conduct.
Jurors in the Manhattan criminal trial in May found Trump guilty of 34 charges of falsifying business records – including invoices, accounting ledger entries and checks – as part of a scheme to disguise $130,000 in hush money as a legal expense and keep potentially damaging stories about alleged extramarital encounters from voters. Each of the 34 count carries up to four years in prison — though legal experts said Trump would likely serve less than four years given his previous lack of a criminal record.
On Wednesday, Trump’s lawyers filed a motion arguing that jurors should never had heard testimony from former White House personnel, along with other pieces of evidence. The motion cites the Supreme Court's pivot presidential immunity ruling, and asks Merchan to vacate the jury’s verdict and dismiss Manhattan District Attorney Alvin Bragg’s indictment.
Prosecutors have until July 24 to file a response. Merchan has delayed sentencing until September — "if," he said, "such is still necessary."
“In the Trump immunity case, the Supreme Court gave Trump a big hammer, a stick, a really powerful weapon to go smash up the cases that have been brought against him,” said College of Charleston professor Claire Wofford, who teaches constitutional law and American government. "And that's exactly what he's done in this most recent filing."
William Brennan, an attorney who represented Trump in his second U.S. Senate impeachment trial and in a Trump payroll tax case before Judge Merchan, said the judge could grant a new trial where jurors couldn’t hear certain evidence — such as testimony from witnesses about Trump’s conduct as president.
“Judge Merchan could say: ‘Look, based on this decision by the U.S. Supreme Court in the Trump case, that type of testimony should not come in, and the only fair resolution is to give the defendant another shot at a trial,” Brennan said. “So that could absolutely happen.”
Or, he said, the judge could let the verdict stand and decide that all the evidence at issue concerned Trump's unprotected private conduct — or that the evidence's inclusion was a harmless error that would have had a minimal impact on the verdict.
SCOTUS' BROAD DEFINITION OF OFFICIAL CONDUCT
The Supreme Court’s landmark 6-3 ruling said that presidents have "absolute immunity from criminal prosecution" for acts that fall within the "exercise of his core constitutional powers he took when in office."
Presidents, according to the ruling, have "at least presumptive" immunity for other official acts, and no immunity for unofficial acts.
Five of the nine justices also agreed that presidents “cannot be indicted based on conduct for which they are immune from prosecution.”
That means prosecutors aren't allowed to use evidence that concerns a president's protected official conduct.
Justice Amy Coney Barrett disagreed with that part of the ruling — saying it would "hamstring" prosecution of bribery by excluding evidence of an official act connected to a bribe.
“To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability," Barrett said in her concurrence.
But Chief Justice John Roberts — who wrote the majority opinion — said for a bribery prosecution, a prosecutor could point to public record to show the president performed the official act and admit evidence of what the president allegedly gained.
The opinion bars prosecutors from using testimony or private records of the President or his advisers "probing" official conduct.
Roberts said allowing that evidence would invite the jury to "second-guess" the president's motivations for official acts — which he argues would "'seriously cripple'" a president's exercise of official duties.
Trump's motion argues that point: "The purpose of the Presidential immunity doctrine is to ensure that Presidents can perform their extremely demanding functions without fear of a future criminal prosecution."
But Hofstra University law school professor James Sample called the majority opinion unprecedented and disastrous for prosecutors probing abuse of power.
"The majority’s prohibition on using conduct immune from prosecution as evidence, even when, as is clearly the case with Trump’s hush-money payments, the underlying conduct is unofficial, makes it nigh on impossible to mount the evidence needed to carry the prosecutorial burden even as to categorically non-immune conduct," Sample said.
Roberts tasked the lower court weighing Trump's indictment for allegedly scheming to overturn the results of the 2020 election with weighing whether his conduct was official or unofficial — while also making sure the indictment holds up with "sufficient allegations" without protected conduct.
Wofford said Judge Merchan in Manhattan now has a similar job.
“The key issue about presidential immunity is going to be what's official and what's not official,” Wofford said. “And they didn't give a very clear standard.”
The ruling offers a broad definition of official conduct, saying: "the immunity we have recognized extends to the 'outer perimeter' of the President’s official responsibilities, covering actions so long as they are 'not manifestly or palpably beyond [his] authority.'"
Wofford said that gives Trump's team a "lot of leeway."
"For the prosecution, clearly their best argument is going to be to try to argue that these are not official acts," Wofford said.
The limited guidance means that courts will be hashing out tests and rules for presidential immunity for years to come — in decisions that could wind up back at the Supreme Court, Wofford said.
"There's a lot of room here for Judge Merchan to formulate his own rule, his own legal test, his own sense of how you can balance official versus unofficial conduct," Wofford said.
TRUMP'S FIGHT AGAINST PROSECUTION'S EVIDENCE
Trump's lawyers say prosecutors “tainted” the grand jury proceedings and the trial by including testimony from his former White House communications director Hope Hicks about her conversations with Trump and former special assistant Madeleine Westerhout’s observations about Trump’s Oval Office conduct.
“Much of the unconstitutional official-acts evidence concerned actions taken pursuant to ‘core’ Executive power for which ‘absolute’ immunity applies,” Trump’s motion reads. “These transgressions resulted in the type of deeply prejudicial error that strikes at the core of the government’s function and cannot be addressed through harmless-error analysis.”
Wofford said Trump is referring to the "harmless error standard," which refers to errors that would have "no reasonable possibility of affecting the verdict."
"It's a really high bar for him to make that argument, but it's not out of the realm of possibility," Wofford said.
The former president's lawyers are focusing on evidence concerning Trump’s calls in the White House Situation Room, his conversations about the pardon power, his official tweets, his conversations with Hicks and his use of Air Force One and Marine One.
Prosecutors used such evidence to portray Trump as a micro-manager so worried that stories of alleged extramarital sex would decimate his 2016 campaign that he drove a hush money scheme that he ultimately concealed using falsified records — some of which he signed himself.
Westerhout described Trump's hands-on role in day-to-day matters — from dictating tweets, to personally signing checks, to avoiding email, to sometimes signing documents without reviewing them first.
Hicks testified about the fallout of the "Access Hollywood" leak and frantic efforts to minimize damage. She also said it would have been "out of character" for ex-Trump fixer and prosecution witness Michael Cohen to have decided all by himself to pay off adult film star and director Stormy Daniels.
Professor Sample said Judge Merchan has found himself in an "unenviable position."
"He must evaluate, on an entirely ex post basis, whether the evidence, which was properly admitted under the laws as they have existed since the nation’s founding, is now suddenly inadmissible, in a case centered on the cover-up of pre-presidency conduct, merely because the Supreme Court has effectively created a monarchy in a nation that fought a revolution against the very notion that a king could do no wrong," Sample said.
Trump's lawyers say he has absolute immunity for Westerhout's description of Trump's conduct on Air Force One, Marine One and the Situation Room. And his lawyers said he has at least presumptive immunity for the parts of Westerhout's testimony detailing her work with Trump and her observations about how he exercised his executive authority.
"None of these details regarding President Trump’s Administration involved actions that were 'manifestly or palpably beyond his authority,' which is the boundary of that perimeter," reads the Trump motion.
Trump's lawyers continued: "The prospect of biased local prosecutors using official acts testimony regarding a President’s personal preferences during his or her administration, and his or her communications with confidential assistants, presents an unacceptable risk of 'undue pressures or distortions' to a President’s work on behalf of the American people."
Wofford said Trump's argument about Westerhout's testimony "makes sense" under the Supreme Court's ruling.
"Clearly he has to be able to talk to his aides without fear that everything he says is going to be subject to prosecution," Wofford said.
She said: "Even if the prosecution were to argue: Well, you need to look at what they talked about — to me, Trump has a reasonable argument that how he likes to conduct, how he likes to do his job, how he likes to take phone calls, that he doesn't like to do emails, that he likes to move documents in various ways onto Air Force One — to me, that's reasonably within the sphere of an official duty."
PROSECUTION COULD FIGHT ABSOLUTE IMMUNITY CLAIMS
But Wofford said she thinks Trump’s lawyers are “stretching” by arguing that he would have absolute immunity for Hicks’ testimony or Trump’s tweets.
“The core executive functions that [Chief Justice John Roberts] talked about the opinion are things that are really closely tied to the text of the Constitution, like the pardon power or the removal power,” Wofford said.
Trump's motion argues Hicks' testimony was "categorically inadmissible" because the Supreme Court opinion prohibits prosecutors from using testimony from advisers "probing" protected conduct.
Trump's lawyers called Hicks a "key subordinate" on whom Trump relied.
They said Trump's discussions with Hicks in 2018 about the hush money scandal "fit comfortably" within Trump's "outer-perimeter Presidential authority."
But Wofford said it's unclear whether Hopes was indeed an adviser.
Wofford said Merchan could put all presidential communications with staff in the official conduct bucket — or he could look at the substance of the conversations.
"It doesn't necessitate that just because he was talking to her, everything he talked to her about is covered as official conduct," Wofford said. "If the question is: 'Are the President's communications with a staff member about a private matter involving sex with a porn star covered under official conduct?' — then you have a much more persuasive argument that what Hope Hicks testified to is not covered under presidential immunity."
Wofford added: "I mean, if Trump's sex life is not private, and neither is how the media is responding to a sex life, I don't know what does constitute private."
The Supreme Court ruling offers little insight into exactly how to define private conduct.
Referring to Trump’s D.C. case, the justices said Trump “'appeared to concede” that some of the alleged conduct involved “‘private actors’” who helped submit “‘fraudulent slaters of presidential electors to obstruct the certification proceeding.’”
Trump argued that asking the Republican National Committee chair "'to gather electors'” counted as his official conduct of contacting state officials about federal election integrity.
The government called that "campaign conduct."
In her concurrence, Barrett said of the alleged fake electors scheme: “In my view, the conduct is private and therefore not entitled to protection.”
Still, the other five justices didn’t explicitly label the conduct private and gave the task to lower courts, writing: “Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function.”
The Supreme Court's opinion said that the president's duty to "'take Care that the Laws be faithfully executed'" include enforcing federal election laws.
Trump's lawyers also claim the Supreme Court's ruling gives the former president absolute immunity for his tweets — including tweets apparently referencing Cohen and Daniels.
But the Supreme Court's opinion didn't set a hard and fast rule for weighing a president's communications with the public.
"There may, however, be contexts in which the President speaks in an unofficial capacity — perhaps as a candidate for office or party leader." reads the opinion. "To the extent that may be the case, objective analysis of 'content, form, and context' will necessarily inform the inquiry."
Wofford said that could provide an opportunity for prosecutors — though not a slam dunk.
"The court basically said most tweets from a president are official acts, but there is a little bit of wiggle room — the court didn't say all of them," Wofford said. "There's an opening there for the prosecution to argue that even though it was an official White House Twitter account and Trump had an official White House person helping him write the tweets, that the content of the tweets themselves render them unofficial."
Trump's lawyers are also arguing prosecutors shouldn't be able to defend their use of Trump's tweets by pointing to witnesses — Daniels and Cohen — who have offered "implausible opinions" about why Trump made the posts.
The Supreme Court opinion said "courts may not inquire into the President’s motives" when parsing unofficial versus official conduct.
"Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law," the opinion says. "Otherwise, Presidents would be subject to trial on 'every allegation that an action was unlawful,”'depriving immunity of its intended effect."
Trump's lawyers say allowing prosecutors to use Daniels' and Cohen's testimony on Trump's motivations behind the tweets would amount to "an impermissible 'intrusion on the authority and functions of the Executive Branch' and the 'enfeebling of the Presidency.'"
And his lawyers argue that the tweets were "objectively" directed at the American people — not Cohen or Daniels.
PRESUMPTIVE IMMUNITY AN OPPORTUNITY FOR TRUMP
Wofford said Trump’s lawyers have the advantage when it comes to arguing that Trump's non-core conduct was official and thus covered by “really high” presumptive immunity.
“In that respect, they have a really good argument, because the Supreme Court used really sweeping language when it talked about immunity for official acts,” Wofford said.
The ruling makes clear that it's up to the government to rebut the presumption of immunity.
But Justice Ketanji Brown Jackson said the majority opinion lacks guidance on when or how the government could do so.
The opinion — referring to Trump's D.C. case — tasked the lower court with deciding "whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch."
Wofford said that sentence created a definition of presumptive presidential immunity — weighing whether the conduct would intrude on executive authority and functions — that poses a high bar for prosecutors.
Wofford pointed out the opinion's use of the phrase "any danger."
"How can you argue something's not going to have any effect on that?" she said. "That's a really high bar for the court to jump over."
Trump's motion makes that point too: "Where presumptive immunity applies, prosecutors bear the burden of rebutting the presumption by showing that a criminal prosecution involving evidence of the official act would pose no dangers of intrusion on the Executive Branch."
Trump's motion argues prosecutors waived their right to rebut the presumption by rushing to trial over Trump's pre-trial objections — when he also argued he had immunity and that a state court couldn't prosecute him for the offenses.
"The harm resulting from DANY’s actions is irreparable because it will cause future Presidents to be 'unduly cautious in the discharge of his official duties' and to fear '[v]ulnerability to the burden of a trial and to the inevitable danger of its outcome,'" reads the motion.
Trump's lawyers also say the former president should have at least presumptive immunity for his mandatory federal ethics disclosure form.
"By using this document in a criminal prosecution, DANY invited the type of 'second-guessing' of President Trump’s official acts that 'would threaten the independence [and] effectiveness of the Executive,'" reads the motion.
And Trump's lawyers say the president's public statements responding to congressional and Special Counsel investigations were part of his "outer-perimeter" official conduct — meaning he should have presumptive immunity.
