Trump’s appeal will decide how the Supreme Court’s presidential immunity ruling applies to his hush money case.
Donald Trump has always maintained that the laws don’t apply to him. But he failed to convince New York Supreme Court Justice Juan Merchan to delay sentencing him this month following the May 2024 jury verdict finding him guilty of 34 state felony counts of falsifying business records to cover up a sex scandal in New York v. Trump.
Trump appealed Merchan’s denial of his motion to put off the sentencing. Justice Ellen Gesmer, a New York appeals court judge, affirmed Merchan’s ruling that the sentencing should proceed. She was not convinced that presidents-elect enjoy presidential immunity.
Five members of the U.S. Supreme Court allowed the sentencing to go forward. They wrote that “alleged evidentiary violations” in Trump’s state court trial could be addressed during the appeals process, and the burden of sentencing on the president-elect’s responsibilities is “relatively insubstantial” since Merchan intended to impose a sentence of “unconditional discharge.” Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh would have prevented Merchan from sentencing Trump.
On January 10, Merchan imposed a sentence of “unconditional discharge” on Trump — meaning he won’t have to serve time, pay fines or be supervised on probation. Trump had faced the possibility of up to four years in prison.
By sentencing Trump, Merchan has entered a “final judgment” against him. That means that the president-elect has now officially been convicted of felonies, and he can appeal his convictions.
During Trump’s appeal, which he has pledged to file, the Supreme Court’s recent ruling in Trump v. United States – that sitting presidents have immunity for “official acts” – will guide the courts of appeals. In turn, the appellate court’s decision about how Trump v. U.S. applies to New York v. Trump will serve as precedent in future cases.
Even though Trump’s hush money payments to adult film actress Stormy Daniels (via attorney Michael Cohen) occurred before the 2016 presidential election, Trump objected to the admission of certain evidence on the grounds of presidential immunity at his trial in April-May 2024. In July, the Supreme Court decided Trump v. U.S., which set the parameters for the analysis of matters of presidential immunity.
In the course of Trump’s appeal in New York v. Trump, the appellate courts will decide whether Merchan erred in admitting evidence under the presidential immunity principles set forth in Trump v. U.S.
If the appeals court finds that some or all of the disputed evidence was wrongfully admitted at trial, it will then determine whether, in light of all the other evidence presented, Trump’s convictions should be overturned.
On July 1, 2024, the six-member right-wing supermajority of the Supreme Court ruled in Trump v. United States that sitting presidents have absolute immunity from criminal prosecution for their core official acts, and presumptive immunity for all other official acts. That case stemmed from Trump’s efforts to overturn the results of the 2020 election.
A president has presumptive immunity for acts committed in “the outer perimeter of his official responsibility,” Chief Justice John Roberts wrote for the majority. The burden is on the prosecutor to rebut the presumption of immunity by proving that prosecuting those acts would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
Roberts added, “The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.” But the court ruled that in a prosecution for unofficial acts, evidence of official acts cannot be considered by the jury.
The high court established the rules for presidential immunity. But former special counsel Jack Smith dismissed the charges in Trump v. U.S. after Trump was elected president in November 2024 because of a Department of Justice rule that sitting presidents cannot be criminally prosecuted.
Nevertheless, the Supreme Court’s presidential immunity analysis will guide judges in other cases, including Trump’s appeal of his hush money convictions in New York v. Trump. The appellate courts will decide whether the trial judge improperly admitted evidence protected by presidential immunity and if so, whether Trump’s convictions should be reversed.
In New York v. Trump, the former president was charged in state court with repeatedly and fraudulently falsifying New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.
Trump moved to preclude certain evidence on the grounds of presidential immunity. Merchan denied Trump’s motion and admitted the evidence.
The trial was conducted from April 15 through May 29, 2024, and ended in a unanimous jury verdict of guilty on all 34 counts.
Trump’s lawyers made a motion to dismiss the indictment and vacate the jury’s verdict on the grounds of presidential immunity. Merchan denied the motion on December 16, 2024.
“The criminal charges here stem from the private acts of the Defendant made prior to taking the Office of the President — leaving only the question as to whether the evidence used to support the instant charges meet the official acts criteria as set forth by the Trump Court,” Merchan wrote.
Trump argued that certain “official-acts evidence” was improperly admitted, including: private communications with Hope Hicks, White House communications director; Office of Government Ethics Form 278e; observations of Madeleine Westerhout, director of Oval Office Operations, about Trump’s “preferences and practices” in the Oval Office; testimony of Trump’s former attorney Michael Cohen about his communications with Trump and others about the presidential pardon power, testimony about a “pressure campaign,” and testimony about Cohen’s conversations with David Pecker about a related Federal Election Commission inquiry; and “five sets of posts from 2018 on President Trump’s official White House Twitter account.”
Merchan found that Trump failed to timely object to some of this evidence. But even if he had filed proper objections, Merchan wrote, the testimony flagged by Trump reflected unofficial conduct, so no level of immunity applies.
In the event that some of the testimony related to conduct within the outer perimeter of executive duties, Merchan concluded, the prosecution had rebutted the presumption of immunity.
Merchan came to the same conclusion about the government ethics form and Trump’s tweets, quoting Roberts in Trump v. U.S., who wrote that “not everything the President does is official.”
Finally, Merchan held that even if any evidence of official presidential acts was improperly admitted at trial, the introduction of the disputed evidence constituted “harmless error,” so he declined to dismiss the case against Trump. “The error is deemed harmless if there is overwhelming evidence of a defendant’s guilt and there is no significant probability that the error affected the outcome of the trial,” Merchan noted. After examining all of the evidence presented at trial, Merchan concluded that any error in the admission of evidence “was harmless in light of the overwhelming evidence of guilt.”
Trump’s promised appeal is expected to wend its way through the New York state appellate courts. His lawyers could file a petition for writ of certiorari in the U.S. Supreme Court, where they will likely find a sympathetic conservative majority. Four of the right-wing members of the court would have stopped Merchan from sentencing Trump. Roberts and Amy Coney Barrett may well rule in Trump’s favor on appeal.
Meanwhile, even though Justice Merchan didn’t impose a custodial, financial or supervisory penalty, Trump has the distinction of being the first U.S. president to enter the White House with a felony conviction on his record.
This article first appeared on Truthout.