Left: Manhattan District Attorney Alvin Bragg (Lev Radin/Sipa via AP Images) Right: Former President Donald Trump (AP Photo/Mary Altaffer).
Manhattan District Attorney Alvin Bragg on Thursday aimed to shut down former President Donald Trump’s recent efforts to throw out his 34-count felony conviction on document falsification charges.
On July 12, the 45th president’s defense attorneys moved to have his conviction overturned on the basis that evidence introduced at the hush-money and election interference trial was improper in light of the Supreme Court’s broad-based ruling on presidential immunity.
In a 69-page memorandum of law in opposition, New York City prosecutors rubbished that line of argument as off-base.
“This Court should reject defendant’s request to vacate his conviction and dismiss the indictment on the basis of the Supreme Court’s recent ruling on presidential immunity,” the motion begins. “Contrary to defendant’s arguments, that decision has no bearing on this prosecution and would not support vacatur of the jury’s unanimous verdict (let alone dismissal of the indictment) even if its reasoning did apply here.”
The heart of Trump’s argument in favor of dismissal is that prosecutors used evidence from 2017 and 2018 — while the since-convicted felon was still president — which fell under the ambit of “official acts” and which implicated the “core” of his executive powers.
Bragg’s office says there’s a basic procedural problem with Trump’s latest in a long line of complaints.
“For one thing, defendant failed to preserve an objection on immunity grounds to most of the evidence that is the subject of his current motion,” the prosecution filing reads.
Largely at issue here was a so-called “pressure campaign” in Trumpworld — allegedly engaged in by people up to and including Trump himself — against Michael Cohen, the state’s star witness during trial. Additionally, prosecutors cited four tweets sent by then-president Trump said to have been in service of the campaign.
A defense pre-trial motion sought to exclude evidence of that alleged campaign — arguing it implicated Trump’s official acts. The state opposed that motion and the court denied it as untimely.
Other relevant evidence included testimony elicited from Trump’s former communications director, Hope Hicks, and former Trump White House official Madeleine Westerhout.
During trial, the state moved to use the evidence. The defense objected. Justice Juan Merchan, who is still in charge of the case and will decide the motion to dismiss, partially deferred ruling on the issue — instructing Trump’s team to use objections during trial but declining to bar the evidence but only allowing the state to use such evidence in a limited way.
When it came time for the two sides to either use the evidence or lodge objections, the state was more willing while the defense was mostly mum, Bragg’s motion argues.
“As trial proceeded, defendant objected twice to the admission of evidence regarding defendant’s purportedly official acts as President,” the filing argues. Defendant did not raise any objection based on his purportedly official acts to the testimony of Michael Cohen or Madeleine Westerhout, nor did he raise any such objection to the admission of four statements posted to his Twitter account while he was President.”
But Bragg’s effort does not hang its hat on procedural heft.
Engaging with the merits of Trump’s immunity argument, the elected prosecutor argues, “all of the evidence” cited in the motion to dismiss “either concerned wholly unofficial conduct or, at most, official conduct for which any presumption of immunity has been rebutted.”
Trump also claims a more fundamental problem — that the official acts evidence infects the indictment itself because it was presented during the grand jury process. Included here are allegations that the state improperly used a few references to David Pecker, 72, the onetime CEO of the National Enquirer’s parent company, American Media Inc. in laying out their case for grand jurors.
Again, Bragg’s office takes issue with that line of thought.
“[T]he evidence defendant claims was erroneously presented to the grand jury is not entitled to any protection on a claim of presidential immunity,” the state’s motion goes on. “The grand jury testimony from Hicks, Pecker, and Cohen, as well as the four Tweets defendant issued while serving as President, all reflect unofficial conduct and are admissible.”
The state also argues the holding of the nation’s high court is irrelevant to what happened in the Big Apple.
“For all the pages that defendant devotes to his current motion, the evidence that he claims is affected by the Supreme Court’s ruling constitutes only a sliver of the mountains of testimony and documentary proof that the jury considered in finding him guilty of all 34 felony charges beyond a reasonable doubt,” Bragg argues in summary. “Under these circumstances, there is no basis for disturbing the jury’s verdict, and defendant’s motion should be denied.”
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