As part of the ruling, which split along ideological lines, the conservative majority said evidence related to official acts could not be used against a former president in court. The justices labelled some presidential conduct – such as communications with the Justice Department – as clearly official, but did not define others, leaving those decisions up to trial judges. Whatever they decide is likely to be appealed, however, potentially bringing the question back to the Supreme Court.
The high court decision came from a case involving Trump’s federal indictment in DC, which accuses him of illegally trying to block Joe Biden’s 2020 election victory. But it had immediate repercussions in Manhattan, where Trump – the presumptive Republican nominee in this year’s election – was convicted in May of 34 felony counts of falsifying business records related to a hush-money payment.
He is the first former president convicted of a crime.
Sentencing had been scheduled for Thursday but was tentatively postponed until September by New York Supreme Court Justice Juan Merchan to allow Trump’s lawyers and the Manhattan district attorney’s office time to argue over whether evidence used in the case must now be thrown out.
Merchan, will have to decide whether to over-ride the jury’s verdict, which judges are usually reluctant to do. That said, the legal question at issue is unprecedented.
Blanche and Bove wrote that prosecutors relied heavily on “official act” evidence throughout the case, beginning with the grand jury that indicted Trump in March 2023. Merchan “now has the authority to address these injustices, and the Court is duty-bound to do so in light of the Supreme Court’s decision,” their 52-page filing said.
The attorneys also argued that any legal rationale Merchan might consider to uphold the verdict should not undo the error of including prohibited evidence. Even if Merchan found that there was enough other evidence to support the jury’s finding, they said, the guilty verdict should still be reversed.
If Merchan tosses out the verdict and dismisses the indictment, it would mean Trump cannot be retried on the original charges. The judge would have to decide if prosecutors may present the case to a new grand jury panel without using evidence found to be problematic.
In addition to Trump’s tweets and the testimony from Hicks, the defence lawyers said evidence offered by former White House aide Madeleine Westerhout should have been excluded.
Blanche and Bove pointed to prosecutor Joshua Steinglass’s closing argument to illustrate that testimony from Hicks and Westerhout – which the defence lawyers referred to as “unconstitutional official acts evidence” – was vital to the district attorney’s trial presentation.
Trump’s tweets related to the hush-money payments, they added, were on “a Twitter account that has been recognised as a formal channel of White House communication in the Trump Administration”.
If the guilty verdict stands, Trump faces up to four years in state prison – although given his lack of a prior criminal record and the logistics involved with jailing a former president, incarceration would be unusual. Even before the Supreme Court’s immunity ruling, he had vowed to appeal.
Trump’s New York trial centred on a $130,000 payment to adult-film star Stormy Daniels ahead of the 2016 election in exchange for her silence about a sexual encounter she said she had with Trump at a celebrity golf tournament in 2006. Trump, who denies having sex with Daniels, reimbursed his former attorney, Michael Cohen, for that payment in a set of instalments in 2017, after Trump had taken office.
Prosecutors have signalled that they will tell Merchan that the Supreme Court decision should have no impact on the trial, since the falsification of records stemmed from an agreement made before Trump was president. Their response to Trump’s motion is due by September 24.
A federal judge in New York, ruling last year on whether the trial should be moved from state court to federal court, said Trump’s role in the Daniels transaction was unrelated to his official position as president.
