NEW YORK – A gut punch for most defendants, Donald Trump turned his criminal conviction into a rallying cry. His supporters put “I’m Voting for the Felon” on T-shirts, hats and lawn signs.
“The real verdict is going to be Nov. 5 by the people,” Trump proclaimed after his conviction in New York last spring on 34 counts of falsifying business records.
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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 dismiss it because of a U.S. Supreme Court decision in July that 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 toss his conviction and either order a new trial or dismiss the indictment entirely.
Merchan had been expected to rule in September, but put it off “to avoid any appearance” he was trying to sway the election. His decision could be on ice again if Trump takes other steps to delay or end the case.
If the judge upholds the verdict, the case would be on track for sentencing Nov. 26 — though that could shift or vanish depending on appeals or other legal maneuvers.
Trump's lawyers have been fighting for months to reverse his conviction, which involved efforts to conceal a $130,000 payment to porn actor Stormy Daniels, whose affair allegations threatened to disrupt his 2016 campaign.
Trump denies her claim, maintains he did nothing wrong and has decried the verdict as a “rigged, disgraceful” result of a politically motivated “witch hunt” meant to harm his campaign.
The Supreme Court’s ruling gives former presidents immunity from prosecution for official acts — things they do as part of their job as president — and bars prosecutors from using evidence of official acts in trying to prove that purely personal conduct violated the law.
Trump was a private citizen — campaigning for president, but neither elected nor sworn in — when his then-lawyer Michael Cohen paid Daniels in October 2016.
But Trump was president when Cohen was reimbursed, and Cohen testified that they discussed the repayment arrangement in the Oval Office. Those reimbursements, jurors found, were falsely logged in Trump’s records as legal expenses.
Trump’s lawyers contend the Manhattan district attorney's office “tainted” the case with evidence — including testimony about Trump’s first term as president — that shouldn’t have been allowed.
Prosecutors maintain that the high court's ruling provides “no basis for disturbing the jury’s verdict.” Trump's conviction, they said, involved unofficial acts — personal conduct for which he is not immune.
The Supreme Court didn't define an official act, leaving that to lower courts. Nor did it make clear how its ruling — which arose from one of Trump's two federal criminal cases — pertains to state-level cases like Trump's hush money prosecution.
“There are several murky aspects of the court’s ruling, but one that is particularly relevant to this case is the issue of what counts as an official act," said George Mason University law professor Ilya Somin. “And I think it’s extremely difficult to argue that this payoff to this woman does qualify as an official act, for a number of fairly obvious reasons.”
Trump’s efforts to erase the verdict have taken on new urgency since his election, with a sentencing date looming at the end of the month and possible punishments ranging from a fine or probation to up to four years in prison.
Presidents-elect don't typically enjoy the same legal protections as presidents, but Trump and his lawyers could try to leverage his status as a former and future commander-in-chief into something of a “Get Out of Jail Free” card.
One likely argument: Trump wouldn't just be saving himself from a potential prison sentence, he'd be sparing the nation from the calamity of its leader behind bars — however remote that possibility is.
“He’ll ask every court in the world to intervene if he can, including the Supreme Court, so that could drag things out a bit,” said Syracuse University law professor David Driesen, author of the book, “The Specter of Dictatorship: Judicial Enabling of Presidential Power.”
At the same time, Trump has been attempting to again move the case from state court to federal court, where he could also assert immunity. His lawyers have asked the 2nd U.S. Circuit Court of Appeals to reverse a judge’s September ruling denying the transfer.
If Merchan orders a new trial, it seems unlikely that could happen while Trump is in office.
Trump’s lawyers argued in court papers that, given the Supreme Court ruling, jurors shouldn’t have been allowed to hear about matters including 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 as president to file. A footnote mentioned that Trump reimbursed Cohen in 2017 for unspecified expenses the year before.
Trump lawyers Todd Blanche and Emil Bove argued that prosecutors were trying “to assign a criminal motive” to some of Trump’s actions in office to “unfairly prejudice” him. For example, they wrote, prosecutors pushed the “dubious theory" that some of Trump's 2018 tweets were part of a “pressure campaign” to keep Cohen from turning on him.
The immunity decision “forecloses inquiry into those motives,” Blanche and Bove wrote.
Prosecutors countered that the ruling doesn’t apply to the evidence in question, and that regardless, it’s “only a sliver of the mountains of testimony and documentary proof” the jury considered.