NEW YORK– A hard blow to most defendants, Donald Trump reversed his criminal conviction in a battle cry. His supporters posted “I vote for the felon” on T-shirts, hats and lawn signs.
“The real verdict will be pronounced by the people on November 5,” Trump proclaimed after his conviction last spring in New York on 34 charges of falsifying company records.
Now, just a week after Trump’s resounding election victory, a Manhattan judge is poised to decide whether to uphold the hush money verdict or reject it because of a US Supreme Court decision in July, it gave presidents broad immunity from criminal prosecution.
Judge Juan M. Merchan has said he will issue a written opinion Tuesday on Trump’s request to dismiss his conviction and order a new trial or dismiss the charges entirely.
Merchan was expected to rule in September, but he delayed “to avoid any appearance” that he was trying to influence the election. His decision could be put on hold again if Trump takes other steps to delay or end the case.
If the judge upholds the verdict, the case is on track for sentencing on November 26 – although that could shift or disappear depending on appeals or other legal maneuvers.
Trump’s lawyers have been fighting for months to overturn his conviction, including efforts to conceal a $130,000 payment to porn actor Stormy Daniels, whose affair allegations threatened to derail his 2016 campaign.
Trump denies her claim, insisting he did nothing wrong and has labeled the verdict a “rigged, disgraceful” result of a politically motivated “witch hunt” designed to damage his campaign.
The Supreme Court ruling gives former presidents immunity from prosecution for official acts — things they do as part of their job as president — and prohibits prosecutors from using evidence of official acts to prove that purely personal conduct violates the law.
Trump was a private citizen — campaigning for president but not elected or sworn in — when his then-attorney Michael Cohen paid Daniels in October 2016.
But Trump was president when Cohen was repaid, and Cohen testified that they discussed the repayment arrangement in the Oval Office. Those fees, jurors found, were incorrectly recorded in Trump’s administration as legal fees.
Trump’s lawyers allege that the Manhattan district attorney’s office “tainted” the case with evidence — including testimony about Trump’s first term as president — that should not have been allowed.
Prosecutors argue that the Supreme Court’s ruling “provides no basis for overturning the jury’s verdict.” They said Trump’s conviction involved unofficial acts — personal conduct from which he is not immune.
The Supreme Court did not define an official act and left that to lower courts. Nor did it make clear how his statement – which arose from one of Trump’s two federal criminal cases – covers state-level cases such as Trump’s hush-money prosecution.
“There are several murky aspects to the court’s ruling, but one that is particularly relevant to this case is the issue of what counts as an official act,” said Ilya Somin, a law professor at George Mason University. “And I think it’s extremely difficult to argue this. that this payout to this woman qualifies as an official act for some fairly obvious reasons.”
Trump’s efforts to overturn the verdict have taken on new urgency since his election, with a sentencing date at the end of the month and possible penalties ranging from a fine or probation to up to four years in prison.
Elected presidents typically don’t have the same legal protections as presidents, but Trump and his lawyers could try to leverage his unique status as a former and future commander in chief in a kind of get-out-of-jail-free card.
One likely argument: Trump would not only save himself from possible prison time, he would also spare the nation from the disaster of its leader behind bars — however remote that possibility.
“He will ask every court in the world to intervene if he can, including the Supreme Court, so that things can be slowed down a little bit,” said David Driesen, a law professor at Syracuse University, author of the book “The Specter of Dictatorship: The Judicial Enabling of Presidential Power.”
At the same time, Trump has tried to move the case again from state court to federal court, where he could also assert immunity. His lawyers have asked the 2nd US Circuit Court of Appeals to overturn a judge’s September ruling denying the transfer.
If Merchan orders a new trial, it seems unlikely it will happen while Trump is in power.
Trump’s lawyers argued in court filings that given the Supreme Court’s ruling, jurors should not have heard about matters such as his conversations with then-White House communications director Hope Hicks, nor another aide’s testimony about his work practices.
Also verboten, they said, was prosecutors’ use of Trump’s 2018 financial disclosure report, which he was required to file as president. A footnote noted that Trump had reimbursed Cohen for unspecified expenses in 2017 the year before.
Trump attorneys Todd Blanche and Emil Bove argued that prosecutors were trying to assign “a criminal motive” to some of Trump’s actions while in office to “unfairly prejudice” him. For example, they wrote that prosecutors advanced the “dubious theory” that some of Trump’s 2018 tweets were part of a “pressure campaign” to prevent Cohen from turning on him.
The immunity decision “precludes investigation into those motives,” Blanche and Bove wrote.
Prosecutors countered that the ruling doesn’t apply to the evidence in question, and that anyway it’s “just a small piece of the mountains of testimony and evidence” the jury considered.