Lawyers for Donald Trump, seeking even broader legal immunity than the Supreme Court has given, made a new maneuver this week to end the case that had resulted in his conviction of 34 crimes in New York state court.
In a new brief made public Thursday, the former President’s legal team argued that his immunity against prosecution for crimes based on “official acts” while in office is so sweeping that prosecutors are forbidden to try to salvage any part of the New York verdicts or to attempt to put him on trial again.
That is based upon the attorneys’ new reading of what the Supreme Court meant to do when it issued its presidential immunity decision in Trump v. United States on July 1. In that decision, the Court majority gave all Presidents total or absolute immunity from being prosecuted, but it expressly limited that protection to any charges based upon “core” presidential actions – that is, those duties that are directly conferred by the Constitution.
The Court said it did not have to go further than that in this first ruling on the immunity question. It specifically left open the possibility that, for some actions not at the “core” but still within the outer limit of official duty could be the basis for criminal charges against a President or former President.
For that second category, the Court said, prosecutors at least temporarily would be allowed an opportunity to try to convince a trial judge that criminal prosecution would not interfere with the functioning of the Presidency. In that situation, the decision said, immunity might not be absolute.
The New York case has now become the first one in a lower court to test just how to apply what the Court decided or had left open. Trump’s lawyers have now filed two briefs to exploit the decision, while prosecutors have filed a single brief seeking to keep the verdicts completely intact, to set the stage for Trump to be sentenced for the convictions. The two sides are far apart in how they read the Supreme Court ruling, thus confronting the trial judge, State Judge Juan M. Merchan, with being the first to try to sort it out.
As the Supreme Court apparently intended, much of the New York case may turn on how Judge Merchan decides what evidence was keyed to official acts, and what to private acts. Trump’s lawyers have been arguing that every bit of evidence used against him in the New York trial was based on official acts, for which he should have absolute immunity. State prosecutors have countered that most of the case is based upon actions Trump took totally outside of his presidential duties, as part of a private scheme to cover up a sex scandal when he was campaigning for President in 2016.
But there has now developed an equally sharp dispute over how to interpret the second category of evidence – that is, proof that the Supreme Court indicated that prosecutors might be able to justify, even though related to official (but not “core”) duties.
Initially, Trump’s lawyers argued that prosecutors in New York had forfeited the opportunity to defend the use of that kind of evidence, because the question of immunity had not been decided in that case before the trial started. Under that argument, the entire trial was challenged as unconstitutional, so the charges should be dismissed and a new trial barred.
Responding to that, the prosecutors had contended that Trump’s team had unsuccessfully tried to gain immunity before and during the trial, so they had had a chance to contest that proof but chose to do so in only a limited way. In addition, the prosecutors argued, they could “easily” overcome any immunity claim, either because almost all of the evidence was keyed to personal not official actions, and because the evidence that might have been linked to some official duty was not the kind that would interfere in any way with the functioning of the Presidency.
Now, in the reply brief filed Wednesday and released Thursday, the Trump team has gone even further, seeking to eliminate entirely the second category of official-but-not-core evidence and thus to bar prosecutors from attempting to revive their case and the verdicts.
The threat to the Presidency from criminal prosecution, based on anything that might be considered official, the new filing said, is to grave that prosecutors can never succeed in salvaging any such proof. While the Supreme Court may have said that it was leaving open such an opportunity, the Trump lawyers contended, the matter is closed for this case because the challenged evidence was put before the jury and “the bell cannot be unrung.”
What happened in the New York trial, according to Trump’s team, involved violations of the very structure of the Constitution, and there can be no “safeguard” to offset such fundamental defects.
The brief went on to say that the New York prosecutors knew that the Supreme Court was preparing to decide presidential immunity in the case of Trump v. United States but were in a hurry to begin a “politically motivated” trial without waiting for the Justices to rule. Now that the trial is over, the brief added, prosecutors should not be allowed to benefit from having pressed forward.
The filing of this new brief appears to complete that part of Judge Merchan’s review of the question of upholding or nullifying the guilty verdicts. The judge had indicated that he will issue a decision by September 6. If the verdicts remain intact at that point, the judge has set a hearing on sentencing for September 18. Potentially, Trump faces up to four years in prison.
