- President Trump wants to void the hush money ruling following the Supreme Court’s immunity decision.
- But experts predict Trump’s newfound immunity will not block a verdict in September.
- That’s because any evidence of official acts used in his trial was merely “harmless error.”
“No harm, no foul” isn’t just for streetball. Former President Donald Trump’s hush money conviction may help him avoid a U.S. Supreme Court exoneration.
Thanks to a legal doctrine known as “harmless error,” President Trump’s sentencing on September 18 is almost certain to go ahead as scheduled, former New York judges and prosecutors predicted in conversations with Business Insider.
And they said no amount of jumping around or yelling “SCOTUS” could stop it.
That’s because even if President Trump’s judge, New York Supreme Court Justice Juan Marchan, were to rule that executive immunity retroactively invalidates some of the evidence used at trial, he would probably also find that this constitutes “harmless error.”
No harm, no wrong, which means that even if you remove the disputed evidence, there’s still overwhelming evidence of Trump’s guilt.
“Saying it’s harmless means that removing this evidence from the trial won’t change the verdict,” explained former Manhattan financial crimes prosecutor John Moskva.
“And I believe the judge will find that he would have been convicted anyway,” added Mokow, now a senior attorney at Lewis Buck Kaufman Middlemiss LLP in New York.
“And yes, I believe a judge will find this harmless.”
What are Trump’s lawyers up to?
Trump’s lawyers are seeking to file a 330.30 motion to set aside the sentence, with the deadline for filing the motion set to Wednesday.
It’s a pre-judgment motion, based on New York state law that says a New York criminal judge must set aside a sentence if a defense proves that events that happened during the trial were so seriously wrong that they would never survive an appeal.
This is where the Supreme Court comes in.
Trump’s legal team has already outlined to Marchan and the prosecution key grounds for Section 330.30 that could be used to try to overturn the conviction on appeal.
These are the same grounds they argued in a pretrial hearing in March, when they unsuccessfully argued that the trial should be delayed until the Supreme Court considered presidential immunity.
Monday’s exoneration opinion protects the former presidents from having to defend themselves against evidence relating to their “official duties.”
Trump’s lawyers argue that on at least four occasions, the judge improperly allowed Manhattan prosecutors to show public records evidence to jurors.
All four cases involved evidence from 2017 and early 2018. (Trump’s then-lawyer Michael Cohen advanced $130,000 in hush money to porn actress Stormy Daniels just 11 days before the 2016 election, but Trump falsified Trump Organization records throughout 2017 while in the White House to conceal his repayments to Cohen.)
Trump claims 2017-18 phone records are evidence of official business
The defense plans to argue that the hush money jury was not supposed to see call records that would show when Cohen’s cell phone was connected to Trump’s and for how long.
But former prosecutors said the records were not “conduct” and were not essential to the sentence.
“Phone records are not evidence that the president did anything,” said Diana Florence, a former financial crimes prosecutor who is now in private practice.
“The logs only show that this device connected to that device,” Moskva agreed.
“And if that’s a formal act, then that’s really problematic,” he added, implying that such an interpretation of presidential immunity would be incredibly broad.
Still, Moskva said, “the conversation was what mattered, and the facts of the conversation were confirmed by the person on the other end of the phone,” meaning the jury believed Cohen in their verdict.
“So even if the call records were deleted, that doesn’t justify a new trial.”
Trump claims 2018 tweets are evidence of official business
The hush money jury should not have seen those specific incriminating tweets from 2018, but the defense is prepared to argue that 330.30 should be overturned.
In the tweets, Trump described the payments to Cohen as repayment of hush money, which contradicts his business records, which incorrectly refer to the payments as “attorneys’ fees” 34 times.
But the tweet came from Trump’s personal Twitter account, described payments from Trump’s personal checkbook and addressed his most personal allegation: a one-night stand with a porn actor.
“That’s why it wasn’t on White House notepaper,” Florence joked. “This is President Donald J. Trump here. I did not pay that porn star.”
“If all of the tweets and ‘truths’ are public acts, then all of the libel and slander laws don’t apply,” Moskva added. “All of the privacy laws don’t apply. He can say whatever he wants, whenever he wants.”
Trump also said his conversation with Hope Hicks in the Oval Office was evidence of official conduct.
The defense also plans to argue that jurors should not have heard former White House communications director Hope Hicks testify about a 2018 Oval Office conversation in which Hicks said Trump told her he was relieved the hush-money story had come to light. rear Not before the election, but after the election.
In his closing statement, prosecutor Joshua Steinglass called the testimony “shocking” and showed Trump viewed the hush money payments as essential to his campaign.
Florence thought the conversation could be made official “because he worked for the Administration,” according to the Supreme Court opinion.
The ruling said that in the Washington DC riot case, Trump’s discussions with the acting attorney general were “easily categorized in terms of the nature of the official relationship between the president and the office he holds” and therefore would be immune from prosecution and would not be prejudicial to Trump.
“But even then, he is discussing matters related to his personal life with Mr. Hicks,” Florence added.
In any event, whether properly or improperly shared with the jury, Florence and Moscow agreed that Hicks’ conversations were corroborative rather than substantive and that the verdict would stand without them.
Finally, Trump also cited his 2018 government ethics form as evidence of his official duties.
The final piece of public evidence Trump is challenging is a government ethics book he signed in 2018.
The filing details Trump’s assets and liabilities and is required of all presidents and senior officials.
Prosecutors showed it to the jury because it included Trump’s claim that he reimbursed Cohen in full in 2017. By calling it a repayment, Trump contradicted his own business records, which disguised the repayments as legal fees.
“The Supreme Court does not believe that the president can be excused from having to fill out paperwork,” Moskow said. “President Trump is not responsible for signing or approving any document if it is an official act.”
Florence said, “If he was being charged with that document, with false statements; perhapsIn the new world we live in, that could be cause for a ruling to be overturned.
“That’s if the judge considers it a formal act, which it could be,” she said, “but the problem is that it’s just further confirmation.”
There is no need to reverse
Even without the call records, tweets, Hicks’ testimony and the ethics code, there is more than enough evidence of unofficial conduct to convict Trump, said Charles Solomon, who served as a state Supreme Court justice in Manhattan for more than three decades before retiring.
“Even if a defendant has been exonerated on all of the evidence, it doesn’t set aside the entire sentence,” said Solomon, who served as counsel to the district attorney’s office after retiring as a judge.
“I don’t think there’s anything in the record that legally requires the judgment to be overturned or amended,” he said.
“The question every judge will ask, and the appeals court will ask, is whether the error was so significant that the sentence might have been different had it not been there,” attorney Thomas Franczyk said.
“The judge will ask, ‘Was there enough evidence to say, even if we disregarded that evidence, ‘There was no harm, there was no crime, and there would have been a conviction anyway,'” said Franczek, a Buffalo native who retired from the state Supreme Court and wrote about 330.30 motions for Erie County’s designated counsel program.
If 330.30 fails, judgment will be given immediately.
If Marchan denies the defense’s 330.30 motion, it’s game over, at least at the court level. Former judges and prosecutors who spoke to BI agreed that Trump’s sentencing would be the inevitable next step.
As a newly convicted felon, Trump can immediately appeal on the grounds that his official acts evidence was improperly admitted and that his 330.30 claim was improperly denied.
Any appeal of Trump’s hush money conviction could take years and go all the way back to the U.S. Supreme Court.
“I can write their opinion: ‘Because it’s Donald Trump, he will win,'” Moskva joked, “with a concurring opinion from Justice Clarence Thomas saying: ‘If we allow his conviction to stand, my people will not continue to fund him.'”
Experts say the ruling will almost certainly be put on hold in its entirety, pending the outcome of Trump’s appeal.
Still, Trump will remain a convicted and sentenced felon for the duration of that time — including, if his current Sept. 18 sentencing date holds, when Americans head to the polls in November to choose the next president.
“Obviously, we’re all just guessing. Who would have thought we’d be in this situation?” Florence said.
“But it’s almost certain that there will be a ruling,” she said. “Judge Cannon will probably set it aside,” she said, referring to U.S. District Judge Eileen Cannon, who is overseeing the Florida classified documents case.
“But I don’t think Judge Marchan will do that.”
Prosecutors have called the 330.30 effort “baseless.” Prosecutors have until July 24 to file a response. Marchan said he will issue a written decision on Sept. 6. A spokesman for the district attorney’s office and Trump’s lawyers declined to comment on the case.
