None of Donald Trump’s 34 guilty verdicts need to be erased because of the new doctrine of presidential immunity, a team of prosecutors in New York argued in a new state court filing that has both legal and political significance. This is the first effort in a lower court to test the effect of the Supreme Court’s immunity decision on July 1.
District Attorney Alvin Bragg and the legal team that won convictions of Trump in May on all charges asked the trial judge, Juan M. Merchan, to reject new pleas by Trump’s defense lawyers to nullify all of the verdicts and to bar any new trial.
The prosecutors’ new filing, made public Thursday, argued that, even if some of the evidence put before the jury should not have been admitted under an immunity claim, there was so much other evidence of Trump’s guilt that any legal effect was “harmless.” Moreover, the prosecutors said, Trump’s defense lawyers failed repeatedly to make objections to evidence and thus much of their new challenge has already been forfeited.
Although some legal observers have interpreted the Supreme Court decision as putting a strong legal shield over presidential conduct, the New York prosecutors said most of what the Justices had said was beside the point, at least in this case, because almost all of what Trump was accused of doing was private and thus had no right to immunity under the Court’s ruling. The Court had ruled that the strongest immunity covered official presidential actions.
The core of the New York case was that Trump engaged in an elaborate scheme, during his 2016 presidential campaign, to cover up a sex scandal involving him and an adult-film star so that the voters remained unaware of it until after the election. The scheme was said to have started before the election, but actually was completed after Trump had won and was serving in the White House.
The Trump team’s immunity challenge assailed the entire New York trial, but sought to focus much of the challenge on the prosecutors’ move to put on the witness stand three people close to Trump, who testified about matters that happened in the White House.
The challenge was started right after the Supreme Court immunity decision, seeking to nullify all 34 guilty verdicts and to bar any new trial on the theory that the charges and the testimony of key witnesses turned the trial into a sweeping threat to the ability of Presidents to perform their duties without having to worry about being prosecuted.
Page after page of the prosecutors’ new 62-page defense of the verdicts described evidence that they argued had nothing to do with official duties. Repeatedly calling it a “hush money” scheme, the document declared:
“The Supreme Court has long recognized that a President can act in an unofficial, personal capacity. Nothing in the Court’s recent immunity decision changes that basic fact. This case involved evidence of [Trump’s[ personal conduct, not his official acts.”
It added that the evidence that Trump’s lawyers claimed should be immunized under the new doctrine “constitutes only a sliver of the mountain of evidence and documentary proof that the jury considered.”
The prosecutors’ defense of all of the verdicts and the breadth of the evidence was clearly designed to lead Judge Merchan to salvage all of the trial and each of the verdicts, rather than having to try to parcel out which evidence might justify which verdict – a process that would have meant trying to unpack what the 12 jurors were thinking as they voted to convict on each of the 34 counts.
With the prosecutors’ response now in, Trump’s defense lawyers are expected to file a reply to try to bolster their challenge. Judge Merchan has promised that he will decide Trump’s challenge by September 6. If he rejects the challenge, he would then consider on September 18 what sentence to impose. Trump faces up to four years in prison if the convictions stand.
The coming decision and the potential sentencing would occur in the midst of this year’s presidential election campaign, in which the New York convictions are an issue. No candidate has ever sought the Presidency while being a convicted criminal. If those convictions are voided, though, that could be a major political gain for Trump. The likely Democratic nominee, Vice President Kamala Harris, is emphasizing those convictions as a central part of her campaign message.
Although Trump has been charged with crimes in four separate cases, only one – the New York state case – has gone to a trial and to verdicts. As of now, none of the other three is expected even to go to trial before voters go to the polls on November 5. The Supreme Court’s immunity decision may play a role in each of the other cases as they unfold further.
The Justices’ decision this month came in the case pursued by federal prosecutors, led by Special Counsel Jack Smith, for crimes that Trump allegedly committed in efforts to keep him in the Presidency after he lost the 2020 election. Those efforts led to the violent attack on the U.S. Capitol on January 6, 2021.
The Court has not yet formally returned the January 6 case to lower courts, to review the impact of the immunity decision on that case. If the normal rule is followed, the Court will send the case back down to the trial court early in August.
Meanwhile, Smith and his prosecution team are pursuing in a federal appeals court a recent ruling by a trial judge in Florida dismissing all criminal charges against Trump for his alleged mishandling of sensitive national security documents at his Mar-a-Lago private club, after he left the Presidency. On Thursday, the appeals court in that case set a schedule for filing briefs that would run into October, meaning that there is no chance of a decision at that judicial level until after the election in early November. Prosecutors, though, could ask the appeals court to speed up its review.
It is almost certain that one or more of these cases will return to the Supreme Court, after the election is decided. If Trump were to be returned to the White House, the fate of all four cases might be put in serious doubt.
