Legal experts: DA can now use "highly relevant" evidence after judge rejects Trump's "absurd" motion

The immunity motion shows Trump legal team's "incompetence," law professor says

By Tatyana Tandanpolie

Staff Writer

Published April 4, 2024 3:43PM (EDT)

Donald Trump and Michael Cohen (Photo illustration by Salon/Getty Images)
Donald Trump and Michael Cohen (Photo illustration by Salon/Getty Images)

The New York judge overseeing Donald Trump's upcoming Manhattan hush-money trial on Wednesday rejected the former president's request to delay the proceedings pending the Supreme Court's presidential immunity decision, tossing one of several of Trump's remaining bids to delay the trial and tanking his effort to exclude key evidence from being used during it. 

New York Supreme Court Justice Juan Merchan ruled that Trump's request was untimely, emphasizing that his legal team had "myriad opportunities" to voice the immunity concern before they did so last month, which was long after the pretrial motions deadline in the case had passed.

That March 7 filing's timing "raises real questions about the sincerity and actual purpose of the motion," the judge wrote in the six-page decision, according to The Associated Press.

But Merchan was "too kind" in his assessment of the Trump team's filing, argues Bennett Gershman, a Pace University law professor and former New York prosecutor. 

The judge "should have said that the motion is frivolous, unprofessional, and made in bad faith," he told Salon, adding that "if Trump’s lawyers seriously believed their motion had any merit, they wouldn’t have waited until days before the trial to make it. Indeed, they could have made the motion many months ago."

Trump's motion to delay the trial based on an immunity claim shows both the Trump legal team's "incompetence" and "contempt for professional ethics," Gershman continued, calling the claim "so ridiculous" that it's "difficult to take it seriously."

"It merely demonstrates the desperate efforts Trump’s lawyers are making to stop the trial no matter how crazy" their arguments are, he said.

Attorneys for the presumptive GOP presidential nominee had asked Merchan to pause the trial indefinitely until the Supreme Court resolved the immunity claim Trump raised in his Washington, D.C. federal election interference case. The Supreme Court is slated to hear arguments on the matter on April 25, 10 days after jury selection in the Manhattan case is scheduled to begin.

The former president argues that he's shielded from prosecution for conduct alleged to include official acts he made while in office. Though his lawyers have not vaulted that claim as a defense in the hush-money case, they have argued that some evidence — including Trump's social media posts about his ex-attorney and fixer Michal Cohen — from during his presidency should be excluded from the trial because of his immunity protections.

"Frankly, I cannot conceive how public tweets during Trump's presidency, that are offered to show his awareness and participation in the cover up of alleged criminal matters that occurred prior to election, would be inadmissible in a case brought after the presidency," Syracuse University College of Law professor Gregory Germain told Salon.

Trump's "baseless" argument, he added, also fell flat in its citation of Nixon v. Fitzgerald, "which held that a former president cannot be sued in a CIVIL matter for official acts taken while president." That case has "nothing" to do with what's at issue in Trump's, Germain explained, noting that the 1974 U.S. v. Nixon decision requiring then-President Richard Nixon to turn over secret tapes he made in the Oval Office to the court "seems clearly to reject Trump's evidentiary claim."

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In his Wednesday ruling, Merchan went on to note a distinction between the immunity claim in the D.C. case, which he notably referred to as the "Federal Insurrection Matter," and the hush-money case. 

In D.C., Trump is attempting to use presidential immunity to have his charges dismissed on the grounds that he has "absolute immunity from federal criminal liability,” Merchan wrote, according to the AP. Meanwhile, in the hush-money case, he said, Trump is trying to bar evidence of what prosecutors allege was his "pressure campaign" against Cohen and other witnesses. 

The Manhattan district attorney's case against the former president hinges on allegations that Trump falsified his company's internal business records to conceal the nature of payments to Cohen, who helped Trump hide negative stories during his 2016 presidential bid. At issue, in particular, is the $130,000 Cohen paid adult film actress Stormy Daniels to prevent her from going public about an extramarital sexual encounter she claimed she had with Trump in 2006. 

Specifically, Trump in the motion sought to have all his communications about the matter while in office excluded. One tweet, for example, from 2018 described Cohen's brokering of an "NDA" with Daniels as unrelated to his campaign. 

"Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA. These agreements are.....," Trump's post read, per Just Security Journalism Fellow Adam Klasfeld

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The prosecution, however, wants to use this kind of evidence to show that Trump publicly "made misrepresentations" about "the nature" of the hush-money payments and that he was "conscious of and participated in" the cover up, Germain explained. 

Such communications would be "highly relevant" in proving Trump's "consciousness of his guilt by trying to conceal damaging proof against him from these witnesses," Gershman added. "Consciousness of one’s guilt is strong proof of a person’s criminal intent, which is the critical element necessary to convict Trump of trying [to] silence Daniels and Cohen from exposing the criminal conspiracy to keep the salacious information from voters shortly before the 2016 election."

Trump's claim that the tweets and other communication in question constituted "official presidential acts," Gershman said, "is absurd."

Trump has pleaded not guilty to all 34 felony counts of falsifying business records against him and has denied having a sexual encounter with Daniels. His lawyers argue the payments to Cohen were real legal expenses and not part of a cover up, the AP notes.

The hush-money case was originally set to go to trial on March 25 but was postponed after the former president's legal team complained about a last-minute document drop from a prior federal investigation into the conduct that resulted in Cohen's imprisonment. 

In the grand scheme, Germain said he doesn't believe Trump's evidence-immunity motion in the hush-money case "is really about the evidence being used at trial."

It "is about Trump trying to delay the trial until after the election, in the hope that he wins the election and could claim immunity from criminal prosecution during his presidency," he said. "It strikes me as a very weak last-minute attempt at delay."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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