Supreme Court immunity decision collides with Trump’s NY conviction  

Just one month after a New York jury made him the first former U.S. president convicted of a crime, the guilty verdict in former President Trump’s hush money case is already in peril following a Supreme Court ruling on presidential immunity.  

Trump’s highly anticipated criminal sentencing was set for next week, until his lawyers latched on to the new ruling as a potential reason to get the verdict tossed. Less than 48 hours after the Supreme Court handed down their decision, Judge Juan Merchan slammed the brakes, delaying the sentencing until September. 

But it will only move forward “if such is still necessary,” Merchan cautioned in Tuesday’s announcement. 

The Supreme Court found former presidents enjoy at least presumptive criminal immunity for all official acts, handing Trump one of his biggest legal victories yet in his criminal prosecutions. It all but certainly enables him to avoid trial on any of his remaining charges before November’s election, when he hopes to retake the White House and grind his cases to a halt.  

Perhaps just as notably, the ruling provides Trump with new ammunition in his efforts to wipe his only criminal conviction. 

“The biggest hurdle is that the Supreme Court has set up a presumption, which puts a burden on the prosecutor. But it’s not an insurmountable burden,” said Cheryl Bader, a former federal prosecutor and law professor at Fordham University.  

In May, a New York jury found Trump guilty on all counts for lying in New York business records to cover up $130,000 in hush money payments to porn actor Stormy Daniels in October 2016 made with an intent to unlawfully influence that year’s presidential election.

Trump does not claim immunity from the actual 34 counts of falsifying business records he faced, but he instead has zeroed in on trial evidence used to prove those counts. The former president contends the jury’s verdict must be tossed out because some evidence shown to jurors is now inadmissible under the Supreme Court’s new test.  

Chief Justice John Roberts, joined by four of his fellow justices, made clear in Monday’s decision that official acts can’t be used as evidence, even if the charges are rooted in unofficial conduct.

“Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office,” Roberts wrote. 

He did caution, however, that “of course the prosecutor may point to the public record to show the fact that the President performed the official act.” 

Trump’s team says Manhattan District Attorney Alvin Bragg (D) improperly brought in an array of official acts as evidence, including Trump’s call records, social media posts, government ethics form and key testimony from a trusted aide. 

Attorneys Todd Blanche and Emil Bove wrote to the judge that, according to the Supreme Court’s decision, “this official-acts evidence should never have been put before the jury.” 

In particular, the former president’s team cites social media posts written during Trump’s presidency and shown to jurors in which Trump attacks Michael Cohen, prosecutors’ star trial witness.

In the Supreme Court’s decision, Roberts noted that “most of a President’s public communications are likely to fall comfortably” within his official responsibilities.  

“There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader,” Roberts cautioned.

Other evidence in question includes call records between Trump and Cohen while Trump was president; a government ethics form where Trump in 2018 referenced the hush money arrangement; and testimony from ex-Trump adviser Hope Hicks. 

Jeffrey Cohen, a former federal prosecutor and associate professor at Boston College Law School, said Hicks’s testimony, in particular, could give some pause if her conversations with Trump were had in his official capacity and the public would not generally have had access to them. 

“So then the question is: How crucial was Hope — those statements to Hope Hicks — to the conviction,” Cohen said.  

Hicks testified to her role as a fixture in Trump’s inner orbit during his 2016 campaign as scandal repeatedly rocked his efforts to take the White House. She also testified about a conversation she had with Trump in 2018, when he indicated Michael Cohen paid Daniels out of the goodness of his heart — which she questioned — and that it was a good thing the story of that payment broke after he won the election. She broke down on the witness stand shortly after.  

In their closing remarks, prosecutors called Hicks’s testimony against her former boss “devastating,” suggesting it “puts the nail in Mr. Trump’s coffin” — which could come back to haunt them. 

“The fact that that the government used it in their closing arguments, or the extent that the government relied on it when making arguments to the jury, will factor into the court’s consideration of how important that evidence was, because the court will assume that the government presents its strongest evidence in its closing argument,” Cohen said.  

Trump’s attorneys have until July 10 to make their arguments to Merchan that the “trial result cannot stand.” Prosecutors say those arguments are “without merit” but did not object to the delay. 

Merchan previously rejected the defense as untimely when Trump attempted to raise it just prior to trial.

Earlier in the case, the former president waived the defense when mounting a later-abandoned effort to move the case from state court to federal court.

“I don’t see the immunity ruling having really any impact on the verdict,” Bader said. “Even under the Supreme Court’s sweeping grant of immunity, falsified private business records to pay off a porn star will not fall within even the outer parameters of official presidential duties.” 

“I think it’s the outer stratosphere of any presidential responsibility,” she added.