Background: Former President Donald Trump arrives for a press conference at 40 Wall Street after a pre-trial hearing at Manhattan criminal court, March 25, 2024, in New York. (AP Photo/Yuki Iwamura, file). Insets, top to bottom: Stormy Daniels arriving at the 2024 AVN Awards at Resorts World Las Vegas in Las Vegas, Nevada, on January 27, 2024 (DeeCee Carter/MediaPunch /IPX). Michael Cohen, former personal attorney to former President Donald Trump, is seen on March 15, 2023 outside Manhattan Criminal Court in New York City (zz/Siegfried Nacion/STAR MAX/IPx 2023). Manhattan District Attorney Alvin Bragg speaks during a news conference, Wednesday, Sept. 13, 2023, in New York (AP Photo/Mary Altaffer).
The first former president convicted of a crime — specifically 34 felonies of falsifying business records in order to unduly influence the 2016 election — has filed a motion to dismiss those charges and a New York jury's verdict, arguing that evidence introduced at the hush-money and election interference trial was improper and that in light of the Supreme Court's recent immunity ruling, Manhattan District Attorney Alvin Bragg was "wrong, very wrong" to charge him.
In the 55-page motion to dismiss, former President Donald Trump's attorneys Todd Blanche and Emil Bove asked New York Supreme Court Justice Juan Merchan to undo the jury's verdict because while "prosecutors scoffed with hubris at President Trump's immunity motions and insisted on rushing to trial," the Supreme Court's decision demonstrates that evidence from 2017 and 2018 introduced at trial very likely fell under the umbrella of his "official acts" at the "core" of his executive powers.
The testimony from Hope Hicks, Trump's former White House communications director, for example, should never have come in, Blanche and Bove contend.
As Law&Crime reported, when Hicks took the stand, she told jurors about a discussion she had with Trump in 2018 after a story emerged in the press about a $130,000 hush money payment to Stormy Daniels, the adult film actress. Hicks testified that Trump told her Cohen paid Daniels to protect Trump and keep what she described as "false allegations" at bay.
Critical for the prosecution, Hicks testified that it was Trump who told her that it would be better to deal with the fallout from the Daniels story in 2018 than before the 2016 election.
But Trump argues this evidence, as well as other testimony from White House official Madeleine Westerhout, violated Article II powers which forbid prosecutors from introducing testimony from a president's official advisers.
As Law&Crime reported, Westerhout testified that the Access Hollywood tape, where Trump was heard boasting that he could grab women by their genitals without their consent, had generated concerns among members of the Republican National Committee that Trump may need to be replaced "if it came to that."
On redirect, however, Westerhout backtracked and said she didn't have actual knowledge about reaction of the tape and then claimed she wasn't working for Trump at the time, anyway.
In the motion to dismiss, Trump's lawyers argue that Westerhout's testimony wrongly exposed information about Trump's official work habits and social media practices.
Hicks — and Westerhout, for that matter — was a "key subordinate" who Trump "relied upon to help him exercise Article II authority under, inter alia, the Executive Vesting Clause and the Take Care Clause," the attorneys argue.
"President Trump's 2018 conversations with Hicks also involved efforts by President Trump to 'supervise' someone who was 'wield[ing] executive power on his behalf,' which is an authority that 'follows from the text of Article II.' As a result of the multiple sources of constitutional authority upon which President Trump's interactions with his White House Communications Director were based, he is entitled to absolute immunity with respect to that evidence," the defense lawyers wrote.
And in a line of argument that is likely to be closely watched by special counsel Jack Smith in Washington, D.C., where Trump faces four criminal counts alleging he conspired to subvert the 2020 election, Bove and Blanche also pointed to Trump's tweets sent as president and then used as evidence against him.
For example, the defense lawyers say, when the jury was selected in April, prosecutors offered proof of a pressure campaign, citing Trump's tweets related to hush-money payments and messages with Michael Cohen as well as other communications, including those with attorney Robert Costello.
Bragg had argued that because the tweets were "publicly broadcast, tweeted out for the world to see," Trump should be forbidden from trying to hide that from the jury at trial and if he wanted to object during proceedings, he could.
Bove and Blanche recounted Merchan's response to that assertion in court: Merchan told them that if their argument was that tweets Trump had sent while he was president were forbidden because they constituted an official presidential act, "it's going to be hard to convince me that something that he tweeted out to millions of people voluntarily cannot be used in court when it's not being presented as a crime."
"It's just being used as an act, something he did. But we'll wait until we get that submission," Merchan had said, the motion highlights.
Now the attorneys argue that when Trump filed a pre-motion letter objecting to official acts evidence based on presidential immunity like witness testimony and Twitter posts, prosecutors had "incorrectly claimed" that Trump "forfeited" the presidential immunity argument because he wasn't timely when making it.
In the end, Bragg's "tremendous and unwarranted arrogance," Bove and Blanche wrote, led Bragg to argue that presidential immunity "does not exist."
"Here, [the District Attorney of New York] wrongfully and unconstitutionally forced President Trump to litigate official acts evidence at trial. They did so proudly and unapologetically, in a manner that speaks to the political motivations driving the elected local official responsible for this unjust prosecution on behalf of President Biden," the motion states.
Importantly, when the Supreme Court issued its ruling last week that presidents have immunity over official acts — not private conduct — the majority in the 6-3 decision found those protections covered communications with Justice Department officials but other areas and other communications and how they would be considered were less clearly defined in the ruling. Even if these matters are more narrowed if special counsel Jack Smith, for example, refiles Trump's Jan. 6 criminal indictment, it is almost a certainty that Trump would appeal and the question will be right back to the Supreme Court.
Should Trump's conviction in New York be thrown out, the same charges cannot be brought. It would also mean the state court would need to sort out what evidence could or could not come in. Bragg now has until July 24 to respond the motion to dismiss.
As Law&Crime reported on July 2, Trump's team promptly filed a request to stay Trump's sentencing for July 11 and met no resistance from Bragg who said he wanted time to push back on Trump's arguments anyway. For the moment, Trump is scheduled for sentencing in the New York case for September 18.
