Trump is not immune in NY case, and he's big mad about it
The wheels of justice are still turning. Barely.
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On Tuesday, the president elect fired off a spittle-flecked rant that was inchoate even by his own debased standards.
“In a completely illegal, psychotic order, the deeply conflicted, corrupt, biased, and incompetent Acting Justice Juan Merchan has completely disrespected the United States Supreme Court, and its Historic Decision on Immunity,” he fulminated, complaining that “Merchan has so little respect for the Constitution that he is keeping in place an illegal gag order on me, your President and President-Elect.”
“I am the only Political Opponent in American History not allowed to defend myself,” he howled, predicting that the court’s refusal to disappear his conviction for creating fraudulent records to cover up the hush money payment to Stormy Daniels would lead to “the end of the Presidency as we know it.”
None of that is true. For one thing, the Supreme Court itself left the gag order in place, denying an application from conservative podcaster Joseph Neirman, who calls himself “Good Lawgic,” to lift the ban on attacking the judge’s family. (Seems like his lawgic was … not so good.)
The truth is that as Trump prepares to retake power and tries to convince Americans he has a mandate to gut the federal government, he’s furious that he’s being held accountable in any tiny way for all the crimes he was charged with and convicted for.
What is that lunatic even on about?
Proximately, Trump is mad because Justice Juan Merchan denied his motion to dismiss the New York criminal case on grounds of presidential immunity.
Thanks to six craven justices, evidence of official presidential acts is barred, even when the crime itself is unrelated to official conduct. Trump argued that this meant his 34 convictions for creating false business records were tainted by the introduction of impermissible evidence.
Two of Trump’s aides, Hope Hicks and Madeleine Westerhout, testified at the trial about discussions that took place at the White House. In addition, the prosecution introduced a 2018 government financial disclosure in which Trump referred to an outstanding debt to Michael Cohen, undercutting the claim that Cohen was performing actual legal work. Prosecutors also pointed to several tweets from 2018 as evidence of Trump’s pressure campaign to get Cohen not to flip. Trump argued that all of these should have been excluded, and thus the verdict must be overturned.
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“[The District Attorney] concocted a dubious theory of a 2018 ‘pressure campaign’ by President Trump so that they could falsely claim to the jury that people like Hope Hicks and Madeleine Westerhout provided some measure of corroboration for testimony that the prosecutors themselves struggled to credit,” his lawyers Todd Blanche and Emil Bove wrote in their motion to dismiss. “In order to vindicate the Presidential immunity doctrine, and protect the interests implicated by its underpinnings, the jury’s verdicts must be vacated and the Indictment dismissed.”
The problem with this argument is that Blanche and Bove failed to make it beforehand — or at least not in timely fashion. The trial was due to begin on March 25, and the lawyers waited until March 7, long after the 45-day deadline, to move to dismiss and/or exclude evidence on grounds of presidential immunity. (The trial was delayed by a month thanks to a wholly spurious allegation of prosecutorial misconduct lobbed by Trump’s lawyers.) Justice Merchan denied the dismissal motion as untimely, but told them they could raise immunity objections at the trial itself. In the event, they failed to object to each piece of contested evidence, seemingly forgetting to protest Westerhout’s testimony at all. And so, in legal parlance, the objections were not fully “preserved.”
Blanche and Bove had several theories as to why this shouldn’t count against them. They blamed Manhattan District Attorney Alvin Bragg, who refused to delay the trail until after the Supreme Court issued its ruling.
Having rushed the case to trial over President Trump’s objection, while these very issues were under review in Supreme Court proceedings that now require this litigation, District Attorney Bragg should not be permitted to try to clean up the mess he created after the fact.
They insisted that, under Trump v. US, the court was required to hold a hearing on the official evidence, and the lack of one constituted a “mode of proceedings error” that invalidates the outcome. They claimed that they failed to object to "avoid antagonizing the court or testing its patience," and should thus be treated as if they had cowboy-ed up and done what the law requires.
Justice Merchan responded dryly that “the trial record demonstrates that this Court did not curtail counsel or limit his right to object. In fact, the record demonstrates that counsel objected approximately 170 times during the course of the trial.” He also noted, as part of Trump’s failed effort to get his case into federal court, US District Judge Alvin Hellerstein examined the underlying conduct and ruled that dummying up fake legal bills to pay your lawyer back for money fronted to a porn star is not an official act. So Trump has actually had the benefit of a procedure quite like the one he says was a necessary precursor to the trial.
And if the underlying conduct was not official, then discussing it on Twitter or with White House aides must also be non-official, the court reasons.
It is therefore logical and reasonable to conclude that if the act of falsifying records to cover up the payments so that the public would not be made aware is decidedly an unofficial act, so too should the communications to further that same cover-up be unofficial.
Hope Hicks’s testimony, to which Trump did preserve some objections, was about the coverup of events that preceded his presidency. For instance, she testified that she helped craft the statement to the Wall Street Journal calling the Daniels story “old, recycled reports, which were published and strongly denied prior to the election.” Even under the Supreme Court’s wildly expansive definition of immunity, an official person is able to speak in a wholly private capacity. (That is, speech is official based on its content, not the identity of the speaker.) And so the court concludes that Hicks’s testimony was admissible, even under the Trump standard, because it involved conduct that took place before Trump was president.
“Defendant's attempts to sweep these communications under the protections afforded by the Take Care and Vesting Clauses is unpersuasive and Defendant has not referenced any Constitutional authority upon which he was acting for any of the four communications with Ms. Hicks,” Justice Merchan wrote.
Finally, the court ruled that the disclosure of the Cohen debt (incurred before his presidency) was not an official act: “A financial disclosure form that is required to be prepared and filed by other federal government employees cannot be subject to Presidential immunity.”
All of this will be appealed, of course. But Justice Merchan backstopped his own ruling by saying that, even if all this evidence should have been excluded under Trump v. US, it doesn’t matter, because Trump would have gotten convicted anyway: “Lastly, this Court concludes that if error occurred regarding the introduction of the challenged evidence, such error was harmless in light of the overwhelming evidence of guilt.”
It’s an incredibly thorough, well-reasoned opinion, which may or may not hold up on appeal — the Supreme Court’s conservatives have shown an almost superhuman capacity to start from the desired result and reason their way backward. But Trump is simply wrong when he claims that it’s contrary to law.
So, what’s left of this case?
As of now, Trump still has a pending motion to dismiss based on a grab bag of inanities and previously-rejected legal theories. Known as a “Clayton motion,” it basically asks the court to set aside the verdict in the interest of justice.
The filing touches on the Hunter Biden pardon, Special Counsel Jack Smith’s investigation, and the District Attorney’s supposed improper motivations. It also reminds the court that Trump won the election, and is about to be president, despite the considered opinion of twelve jurors in Manhattan that he’s a criminal.
On November 5, 2024, the American people gave President Trump a powerful national mandate to Make America Great Again, and to address the harms perpetrated by the Biden-Harris Administration, including their unsuccessful lawfare using DANY, Smith, and others. President Trump won 312 Electoral College votes compared to Harris’s 226, and he beat Harris in the popular vote by approximately 2.5 million. President Trump is now fully engaged in the transition process. Congress will certify President Trump’s victory under the Electoral Count Act on January 6, 2025. President Trump will be inaugurated on January 20, 2025.
These are political arguments, which are neither appropriate nor effective. And it’s disheartening that they’re being made by two lawyers who are about to be running the Justice Department.
The legal arguments amount to no more than a retread of the immunity claims, along with a repeat of their already-rejected claim that Justice Merchan should have recused himself. The only thing that’s plausibly new is a claim that Trump is so busy with the transition that it violates the Supremacy Clause to bother him with state criminal proceedings in which he is the defendant. This motion is almost certain to be denied.
There’s also a dispute over possible juror misconduct taking place largely off the public docket. That, too, appears to be Blanche and Bove hyping a story that will lead nowhere in an effort to publicly discredit the verdict, and heedless of the danger it may pose to the jurors.
As the prosecution points out:
Defendant does not want to participate in a hearing designed to evaluate these claims. He wants instead to use these unsworn, untested claims by his attorneys to undermine public confidence in the verdict. In other words, defendant is asking the Court to allow him to adjudicate his grievances only in the public forum wherein the only available relief is nonlegal.
The only other issue is sentencing, which Trump demanded be delayed before the election to avoid the appearance of political interference, and now says must be canceled entirely because he won. DA Bragg takes the position that the case can be functionally mothballed for four years, during which time Trump will be immune, although it’s unclear what effect that will have on his appeals. The odds that he is ever sentenced seem pretty low, although the prosecutors urge the court to leave the convictions on the books in the name of justice.
Trump’s rage is that he may not be able to wipe away this last vestige of accountability. After Judge Aileen Cannon blew up the stolen documents case, and the Supreme Court invented presidential immunity, and the Georgia Court of Appeals disqualified DA Fani Willis and her entire office from the election interference case, the New York case is the only viable one left.
And now the lawyers who have proven that they will do anything to please Trump are being rewarded with prestigious government offices. It’s a miscarriage of justice.
That’s it for this week
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The only argument he did not make was that the entire case should be dismissed because he is special.
Thank you for your continuing work.