With Judge Juan Marchan's ruling on Tuesday postponing Donald Trump's sentencing in the New York hush-money case until September, the justices now face the challenge of applying the Supreme Court's new test for the limits of presidential immunity to the former president's criminal conviction.
Trump was convicted in May of 34 felony counts of falsifying business records related to a 2016 hush money payment to adult film actress Stormy Daniels in order to boost his own election prospects in the 2016 presidential election.
Trump's lawyers argue that, based on the Supreme Court's ruling on Monday that Trump is entitled to “at least constructive immunity” from criminal prosecution for his official duties while in office, the judge should “set aside” the jury verdict because the jury heard evidence during the trial that should have been protected by presidential immunity.
Judge Marchan is expected to rule on the defense's requests by September 6, but to do so he will need to answer two key questions, according to former federal prosecutor Jarrod Shafer.
The first question is whether the Supreme Court's decision will limit some of the evidence and testimony in trials.
Rather than arguing that Trump's actions in paying Daniels constituted official presidential acts – an argument rejected by a federal judge last year – Trump's legal team is focusing on so-called “official acts evidence.”
Examples of evidence related to Trump's official duties that prosecutors highlighted in their closing arguments to the jury included Trump's 2018 social media posts, government ethics disclosures and phone records.
Prosecutors presented some of the tweets about Trump's former lawyer, Michael Cohen, to highlight what they called a “pressure campaign” in 2018 to stop Trump from cooperating with investigators.
“Michael is a businessman/lawyer I've always liked and respected who runs his own business. Most people would be upset if the government let them get away with it, even if it meant lies and fabrications,” Trump wrote in an April 2018 tweet.
The Supreme Court's immunity decision included some protection because Trump's communications, including his tweets, were “well within the periphery of his official duties.” But the ruling added that lower courts must decide whether Trump was speaking in his official capacity as president or in an unofficial role such as a candidate for office or party leader.
Judge Marchan refused to consider Trump's last-minute objections to some of the evidence, including tweets, ahead of the trial, and ruled that Trump's request to exclude the evidence was “premature.”
The defense also suggested that some testimony from Hope Hicks, Trump's former White House communications director, would have been protected by immunity.
“I think Mr. Trump thought it would be better to deal with it now, that it would be bad for the story to come out before the election,” Hicks testified at the trial about a 2018 conversation she had with then-President Trump about allegations by Stormy Daniels, who has long denied having a sexual relationship with Mr. Trump in 2006.
Prosecutor Joshua Steinglass later called the testimony to the jury “devastating” and said it “puts the nail in Mr. Trump's coffin.”
Schaefer said Hicks' testimony raises new questions for Marchan, who will have to consider the Supreme Court's restrictions on using “testimony or private records of the president or his advisers” as evidence at trial.
“Even if these are conversations about informal or purely personal conduct, the president is having these conversations with his official advisers and people who have official roles related to the presidency,” Schaefer said. “Would intervening in these conversations or allowing these records to be used make the president-elect hesitant to have these candid conversations with people he needs to rely on to do his job?”
In addition to barring prosecutions of the president for official conduct, Supreme Court decisions have also limited the use of evidence related to official conduct in cases involving the president's private conduct, including by limiting evidence and testimony from the president's advisors.
Justin Levitt, a constitutional law professor at Loyola University Law School, said the Supreme Court's ambiguity in its decision on the use of such evidence presents an opportunity for Trump's lawyers, even though a federal judge has already determined that the hush money payments are “entirely personal to the president.”
“It's not entirely clear what the prohibition on evidence meant,” Levitt said. “The opinion is long and well-known, but it's not very careful and therefore doesn't offer much guidance.”
Schafer said the second issue Marchan must consider is whether the jury relied on that evidence and testimony in returning the guilty verdict.
If Marchand determines that evidence cited by prosecutors was protected by presidential immunity, Schaefer said, he would have to consider whether presenting that evidence at trial was harmless or created “a structural error that made this trial completely unfair.”
“I don't know the answer to that,” Schaefer said, “and I don't think anybody knows, because I've never seen a situation where the Supreme Court has excluded from a prosecution a line of evidence that would otherwise be admissible after a trial and before a verdict has been reached.”
Some experts suggested that evidence such as tweets about Cohen that Trump highlighted in pretrial motions in March was unlikely to have influenced the verdict.
“There's a mountain of evidence to support the jury verdict, so I don't think it will have much, if any, impact on the New York case,” Bennett L. Gershman, a professor at Pace University School of Law, told ABC News.
But prosecutors are placing weight on Hicks' testimony in asking jurors to convict the former president, which could create problems if the testimony is deemed protected by immunity.
“Within minutes, yes, seconds, she broke down in tears as she realized what a blow this testimony would be to Mr. Trump's casket,” Judge Steinglass said in his closing argument to the jury about Hicks' testimony.
Levitt said that if Marchan chooses to vacate the sentence, he could order a new trial without any of the disputed evidence about official conduct.
