- Thanks to the Supreme Court's immunity decision, it may not take long to force a hush-money retrial.
- One key piece of evidence, People's Exhibit 81, may be enough to overturn President Trump's May 30th ruling.
- This is the ethics document that President Trump signed in 2018, the very kind of public records evidence now banned by the Supreme Court.
It may not take much to overturn Donald Trump's May 30 hush-money conviction.
In fact, one piece of evidence may be most troubling to Trump.
Manhattan prosecutors named it “People's Exhibit 81.”
It's a standard federal ethics form called the “Executive Department Employee Financial Disclosure Report.”
Manhattan prosecutors presented it to jurors in early May, during the third week of testimony.
They then touted this as solid evidence that Trump knew the hush money reimbursement checks he paid to his then-lawyer Michael Cohen were simply reimbursements, not “legal fees” as the falsified business records had indicated.
“Mr. Trump repaid Mr. Cohen in full in 2017,” said the document, which he signed and certifies his assets and liabilities.
Days before closing arguments, Business Insider featured Peoples 81 as one of 10 “smoking gun” pieces of evidence pointing to guilt.
Prosecutor Joshua Steinglass referred to Peoples 81 in his closing argument, saying it was evidence that Trump “knew the payments were in fact reimbursements.”
And then Monday came.
In a sweeping decision handed down just 10 days before Trump's original sentencing date, the U.S. Supreme Court declared that former presidents are generally immune from criminal prosecution for “official duties.”
The court later went further and banned the use of official acts as evidence.
It took less than a day for the defense to challenge Trump's May 30 conviction on the grounds of a ban on “official acts” evidence. The challenge delayed Trump's July 11 sentencing on the grounds that hush-money prosecutors had improperly used Trump's official acts at trial.
People's Exhibit 81 – a financial disclosure document that all U.S. government officials are required to file, Trump submitted it. because He was president, but he was the man on the front lines of the defense effort.
Other “official business” evidence currently being challenged by the defense includes Trump's phone calls, tweets and Oval Office conversations with his then-communications director, Hope Hicks.
“under Trump“This evidence of official conduct should never have been presented to the jury,” defense attorney Todd Blanche wrote Monday, referring to the Supreme Court's ruling.
“President Trump may not be prosecuted for exercising a core constitutional power,” Blanch wrote, citing Monday's ruling.
Prosecutors for Manhattan District Attorney Alvin Bragg responded by quickly deriding Trump's efforts as “baseless.”
But the rulings are not being treated as completely moot: Both Bragg and New York Supreme Court Justice Juan Marchan agreed to postpone Trump's July 11 sentencing date so that the issue could be argued in a newly scheduled set of court filings.
Trump has until July 10 to present his arguments, prosecutors have until July 24 to respond, and the judge will decide on September 6 whether to uphold or overturn the hush money conviction.
Under New York's Criminal Procedure Law, Judge Marchan must determine whether the Supreme Court's decision “requires a law to reverse or modify the decision of the Court of Appeals.”
“It really comes down to two things,” said Michelle Paradis, a lawyer who teaches national security and constitutional law at Columbia Law School.
Was the evidence or testimony “in some way official” and therefore covered by the new immunity rule, and if so, was its use at trial “harmless error”?
Ultimately, even if Marchan and the New York Court of Appeals uphold Trump's conviction, Trump may find himself back at the Supreme Court.
Judge Marchan ruled that Trump's new sentencing date would be September 18th if a sentence is “still necessary” by then.
Why Peoples 81 is the perfect obstacle for President Trump
Trump's lawyers have brought other cases in court alleging that “official acts” were improperly used against him in the hope of overturning his conviction.
One of the big testimonies came from Trump's former communications director, Hicks, who told jurors how Trump reacted in the Oval Office when news first broke in 2018 that he had paid hush money to porn star Stormy Daniels.
“He wanted to know what the game was like,” Hicks told jurors about the news reports.
“I think his view was that it would be better to deal with it now, that it would be bad for that story to come out before the election,” she told jurors.
“This is devastating,” Steinglass said in his closing argument with Hick, drawing a clear link between the hush money payments and the presidential election – a legally crucial connection that Trump has denied.
Paradis said prosecutors may have to fight with the defense over the extent to which Hicks' Oval Office conversation with Trump related to official topics and therefore should be barred as testimony.
Paradis said Judge Marchan, or perhaps a future appeals judge, could bar prosecutors from using some of Hicks' conversations with Trump simply because they may have related to official business.
The defense has also said it intends to challenge the use of certain incriminating tweets, such as a May 2018 tweet in which Trump again referred to the payment to Cohen as a “non-disclosure agreement,” or “compensation” for hush money.
But these and other tweets that the defense is calling “official” were sent from Trump's personal Twitter account and, as Trump himself has said, are about “private arrangements” regarding very personal contact with Daniels. It may be difficult for Trump to argue that these tweets are in any way “official.”
Finally, the defense sent a letter Tuesday objecting to the prosecution's use of phone records “reflecting calls made by President Trump while in office.”
Again, this evidence contains a mixture of official and informal conduct as records of both personal and professional calls, which will need to be analysed and argued before Mr Marchan and the appellate judge who will subsequently take up the case.
As for People's Daily No. 81, Paradis said prosecutors might be best served by arguing that such financial disclosures are “personnel documents” that “would likely be considered 'personal' in the federal bureaucracy.”
But no one knows whether the argument will succeed or fail, he told BI.
“That's the problem with this decision,” he added. “It doesn't explicitly say, 'The president is immune from all prosecution.' In some ways it's more harmful than that.”
“It creates an immunity that is so vague and so divorced from agreed upon constitutional text and history that there is no way to know what its limits are,” he said.
“And leaving so much uncertainty about the outer limits essentially means that there are no outer limits.”
