On Sunday, Justice Juan Merchan tossed Donald Trump’s motion to dismiss his New York criminal convictions on grounds of presidential immunity. Perhaps inadvertently, the Supreme Court’s conservatives left the narrowest of paths for a prosecution to survive, and the trial judge threaded it.
The motion to dismiss was packed with the usual hyperbole and ad hominem attacks from attorneys Todd Blanche and Emil Bove, who will soon be running the Justice Department.
“No President of the United States has ever been treated as unfairly and unlawfully as District Attorney Bragg has acted towards President Trump in connection with the biased investigation, extraordinarily delayed charging decision, and baseless prosecution that give rise to this motion,” they bloviated.
At bottom, they objected to testimony by Trump’s White House aides, Hope Hicks and Madeleine Westerhout, along with the introduction of a federally mandatory financial disclosure and several tweets issued while Trump was in office. These violate the Supreme Court’s ruling in Trump v. US that evidence of official acts must be excluded to ensure that the president acts boldly and without fear that he’ll go to jail for doing crimes, they insist. They largely failed to lodge these objections at trial, however, suggesting that they did not anticipate the Supreme Court being crazy enough to buy what they were selling. (Oh ye of little faith!)
But Blanche and Bove aren’t just nasty. They’re creative, too! So they had several interesting theories why their untimely objections should carry the day. Maybe Trump v. US required a special hearing on immunity claims, and the lack of one constitutes a mode of proceedings error that does not require preservation. Maybe they refrained from objecting too much “to avoid antagonizing the court or testing its patience,” and so Justice Merchan should be a pal and treat those objections as if they’d been timely lodged. Maybe presidential immunity is a superpower that trumps all others.
Justice Merchan was not persuaded, and he noted that “the Trump Court” (cough) took pain to affirm that it wasn’t murdering all prosecutions of former presidents in their cribs, but rather setting out a rubric to separate official from unofficial conduct:
In attempting to assuage the concerns expressed by the dissent, Chief Justice Roberts succinctly clarified the majority’s holding. “As for the dissent, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today – conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance whether and to what extent Trump’s remaining alleged conduct is entitled to immunity;” the Trump Court expressly indicating that its holding is no broader than that.
And so Justice Merchan took the Court at its word, finding that “the evidence related to the preserved claims relate entirely to unofficial conduct and thus, receive no immunity protections.” Rejecting the mode of proceedings argument, Justice Merchan noted that US District Judge Alvin Hellerstein conducted a fact-based review pursuant to Trump’s first federal removal petition and concluded that covering up a hush money payment to a porn star by dummying up fraudulent invoices to your lawyer was not official conduct. And so, Justice Merchan reasoned, “It is therefore logical and reasonable to conclude that if the act of falsifying records to cover up the payments so that the public would not be made aware is decidedly an unofficial act, so too should the communications to further that same cover-up be unofficial.”
The court added that, even if the evidence adduced at trial were official in nature, their introduction “poses no danger of intrusion on the authority and function of the Executive Branch.”
And finally, if all the above was wrong, then it was harmless error since there was so damn much evidence against Trump that it wouldn’t have made any difference.
As of this writing, there is still a pending Motion to Dismiss Based on Various Previously Rejected Theories and Also I WON THE ELECTION. There’s also some rumbling from the defense about juror misconduct. It’s not clear what that involves, although the judge characterized it as a letter from the defense which “consists entirely of unsworn allegations.” That should appear on the docket in the next few days, if only in redacted form.
This case is hanging on by a thread. But it is hanging on.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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