Left to right: Donald Trump (AP Photo/Mike Roemer), New York Supreme Court Justice Juan Merchan (AP Photo/Seth Wenig), Manhattan District Attorney Alvin Bragg (AP Photo/Frank Franklin II).
Former President Donald Trump on Thursday sought to bolster legal arguments that his 34-count felony conviction on document falsification charges should be thrown out after the fact.
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.
On July 25, Manhattan District Attorney Alvin Bragg rubbished that line of argument in a lengthy memorandum of law in opposition.
In a 23-page reply brief, Trump aims to refute the arguments advanced by prosecutors — by seizing on some of their concessions.
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 motion in opposition mainly argued Trump failed to procedurally preserve his objections to the use of such evidence.
Trump aims to dispute the procedural argument on several fronts.
The defense motion says the district attorney’s office “concedes” the Supreme Court’s presidential immunity ruling was an “intervening decision” that resulted in a “newly announced rule.”
“Because that is true, and because President Donald Trump raised Presidential immunity objections with this Court and the First Department, [Bragg’s] preservation arguments are meritless,” the motion reads. “[Bragg] fought President Donald Trump’s pretrial motions and urged the Court to rush ahead to trial. That was wrong.”
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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 the trial. Additionally, prosecutors cited several tweets sent by then-president Trump said to have been in service of the campaign. Other alleged “official acts” evidence included testimony elicited from Trump’s former communications director, Hope Hicks, and former Trump White House official Madeleine Westerhout.
A defense pre-trial motion sought to exclude all such evidence — arguing it implicated Trump’s official acts. The state opposed that motion and the court denied it as untimely. During the trial, Justice Juan Merchan allowed the evidence to be used in a limited way.
Meanwhile, the defense continued to object to the use of any White House-related evidence — until the court sought to limit so-called “speaking objections.” In response to that ruling, Trump’s lawyers “maintained” and “renewed” their objections in other ways so as to comply with Merchan’s guidance, the defense motion notes.
Bragg, in his opposition memo, argued that Trump’s objections were “largely unpreserved.”
Trump, however, takes major issue with that claim by cataloging a long record of objections raised in various ways.
“President Donald Trump raised Presidential immunity objections to DANY’s trial proof before and during the trial, including in the Appellate Division,” the motion reads. “The March 7, 2024 pretrial motion sought preclusion of all official-acts evidence, cited anticipated testimony from Hicks and Cohen as examples, and stated that the same preclusion rule applied to ‘other witnesses.’ After the Court erroneously denied the motion … President Donald Trump sought a writ of prohibition in the First Department. In that Petition, President Donald Trump reiterated objections.”
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Bragg’s effort to defeat the immunity-based dismissal request did not only rely on procedural arguments.
The district attorney also took issue with Trump’s claims and attempted to engage on the merits by arguing that “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 says this line of thought misses the forest for the trees.
Nothing in the Supreme Court’s landmark presidential immunity opinion can be read “to permit prosecutors to probe the content of a President’s public statements as supposed proof of the President’s state of mind or motivations,” Trump says. But, the motion argues, that’s exactly what Bragg did when opining on the nature of the tweets.
“Their argument boils down to a claim that the Tweets were motivated by a private purpose, which is a position that Trump forecloses,” the defense motion reads — referring to the Supreme Court’s opinion in Trump v. United States.
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Trump’s motion goes on to argue that the trial court errors committed by the prosecution — and allowed by the judge — are the kind of errors that necessitate a full-on dismissal.
“The bell cannot be unrung,” the defense response reads. “Presidential immunity violations were not ‘merely’ trial errors, and the violations were certainly not ‘harmless’ where DANY’s star witness committed perjury before and during the trial. In any event, harmless-error review is an ‘inadequate safeguard’ for these structural Constitutional violations, which adversely impacted the ‘mode of proceedings’ mandated by the Trump Court and the Constitutional structure that will guide future Presidents.”
In other words, Trump says his conviction should be thrown out because Bragg’s — and Merchan’s — alleged legal mistakes were “structural” errors that severely infected the process.
And, the defense notes, those alleged violations of presidential immunity were central to the state’s case because prosecutors “emphasized official-acts evidence in summations. And, the state also conceded, they used such evidence to bolster Cohen’s flagging credibility.
From the filing, which quotes the immunity opinion, at length:
These violations impact “all [future] occupants of the Oval Office,” and retrospective review is the type of “evidentiary ruling[]” that does not “protect adequately the President’s constitutional prerogatives.” The risk that prosecutors could violate the doctrine, and later defend the error by claiming that other evidence was overwhelming, is the type of “danger” that would lead Presidents to “be chilled from taking the bold and unhesitating action required of an independent Executive.” Harmless-error review would “eviscerate the immunity” that the Supreme Court “recognized.”
In law, a harmless error analysis is used by an appellate court to, in effect, acknowledge fault committed by the state or a lower court while salvaging the original outcome — by finding that the error was not substantial enough to have changed the result. Trump, channeling the nation’s high court, says that such a review is simply not available in cases where presidential immunity issues are concerned.
“The Supreme Court of the United States ruled conclusively and unequivocally that President Donald Trump is protected by immunity for his official acts,” the motion reads, in summary. “In this case, a politically motivated district attorney violated that immunity by using official-acts evidence in grand jury proceedings and at trial. Therefore, the case must be dismissed, and the jury’s verdicts must be vacated.”
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