Trump hush money conviction reversal is unlikely, experts say
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[July 09, 2024]
By Luc Cohen
NEW YORK (Reuters) - Donald Trump faces long odds in his bid to reverse
his conviction on criminal charges stemming from hush money paid to a
porn star despite a landmark U.S. Supreme Court ruling recognizing broad
presidential immunity from prosecution, according to legal experts.
Trump's lawyers last week urged Justice Juan Merchan to set aside the
jury's May 30 guilty verdict on the New York state criminal charges,
citing the Supreme Court's July 1 decision that former presidents cannot
be criminally prosecuted for official acts taken under their "core
constitutional powers."
The ruling also stated that a former president has "at least a
presumptive immunity" for "acts within the outer perimeter of his
official responsibility," meaning prosecutors face a high legal bar to
overcome that presumption.
Merchan delayed Trump's sentencing to Sept. 18 from July 11 in light of
the defense motion. Trump was convicted in Manhattan in the first-ever
criminal trial of a former U.S. president. He is the Republican
candidate challenging Democratic President Joe Biden in the Nov. 5 U.S.
election.
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Several legal experts said Trump will have a tough time convincing the
judge to overturn the conviction because much of the conduct at issue
predated Trump's 2017-2021 presidency and because evidence from his time
in office related to personal matters, not official acts. The Supreme
Court found no immunity for unofficial acts by a president.
"Falsifying business records to pay off a porn star would not fall even
within the outer stratosphere, let alone the outer perimeter of official
presidential duties," Fordham University law professor Cheryl Bader
said.
Trump, 78, was convicted on 34 counts of falsifying business records to
cover up his reimbursement of his former lawyer Michael Cohen's $130,000
payment to adult film actress Stormy Daniels to stay quiet before the
2016 election about a sexual encounter she said she had with Trump a
decade earlier. Trump has denied the encounter and has called the case
politically motivated.
Prosecutors with Manhattan District Attorney Alvin Bragg's office have
called the payment part of a broader scheme to influence the election by
averting a sex scandal that could have influenced decisions by voters.
Trump went on to defeat Democrat Hillary Clinton.
Trump has vowed to appeal the verdict after he is sentenced. The case
should not even get that far, according to his lawyers. In a July 1
letter to Merchan, they said prosecutors presented jurors with evidence
involving official acts as president, including social media posts he
made about his payment to Cohen, an ethics form describing the
reimbursement, and a conversation with a White House aide about Daniels.
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![](../images/070924PIX/news_o35.jpg)
Attendees record former U.S. President and Republican presidential
candidate Donald Trump on their phones as he holds a campaign rally
at Crotona Park in the Bronx borough of New York City, U.S., May 23,
2024. REUTERS/Brendan McDermid/File Photo
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Those actions cannot fairly be described as among the president's
official duties, New York Law School professor Steven Cohen said.
"To the extent there were activities while he was president, they
seem to be almost the definition of unofficial conduct," he added.
"The likelihood that a New York court will reverse that conviction I
think is remote approaching nonexistent."
Trump's lawyers declined to comment. A spokesperson for Bragg's
office did not respond to a request for comment.
'HARMLESS ERROR'
There are precedents for overturning verdicts following Supreme
Court decisions made after a trial's conclusion. A federal judge in
Brooklyn last year threw out two convictions in a soccer bribery
case in light of a May 2023 Supreme Court ruling that placed new
limits on the circumstances under which a fraud law could be
applied.
Even if Merchan were to find that any piece of evidence should not
have been shown to the jury in light of the Supreme Court immunity
decision, that would not automatically mean the judge would have to
set aside the verdict, Cardozo Law School professor Gary Galperin
said.
Instead, Merchan would have discretion to determine whether the
evidence was crucial to the conviction, Galperin said. If the judge
decides that the use of this evidence did not deprive Trump of the
constitutional right to a fair trial - known in legal parlance as a
"harmless error" - the conviction would likely stand, Galperin
added.
"There is no perfect trial," said Galperin, a former prosecutor in
the Manhattan District Attorney's office. "The justice system
tolerates imperfection."
Defense lawyers are due to lay out their arguments for setting aside
the verdict more fully in a court filing by Wednesday, and
prosecutors would then have until July 24 to respond. Merchan has
said he will decide by Sept. 6, and that if the conviction stands
the judge would sentence Trump on Sept. 18.
(Reporting by Luc Cohen in New York; Editing by Will Dunham)
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