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In a new court filing made public Thursday, lawyers for former President Donald Trump argue that his newly-won presidential immunity voids not only his hush-money conviction, but the indictment itself.
“No President of the United States has ever been treated as unfairly and unlawfully as District Attorney Bragg has acted towards President Trump,” the filing laments, referring to the Manhattan DA.
Not only jurors, but grand jurors were shown “official-acts” evidence in violation of “the Presidential immunity doctrine” set just last week by the US Supreme Court, the 55-page filing argues.
“Much of the unconstitutional official-acts evidence concerned actions taken pursuant to ‘core’ Executive power for which ‘absolute’ immunity applies,'” the filing says.
Prosecutors predicted in a court filing last week that Trump’s efforts to overturn his conviction will be “without merit. They are expected to respond that any use of official-act evidence amounts to “harmless error,” meaning Trump would have been found guilty even without its use.
But the use of official-acts evidence “resulted in the type of deeply prejudicial error that strikes at the core of the government’s function and cannot be addressed through harmless-error analysis,” Trump’s filing says.
“Presidential immunity errors are never harmless,” it argues.
SCOTUS found in a sweeping 6-3 July 1 opinion that former presidents cannot be prosecuted for official acts and that such acts cannot be used as evidence against them, even in the prosecution of non-official acts.
The filing appears to mention at least four instances of “official-acts testimony” used by Manhattan prosecutors in the grand jury that indicted Trump on 34 counts of falsifying business records.
But one portion of Trump’s filing has been redacted to obscure what this official-act evidence purportedly was.
No reason for the redactions was given, but grand jury proceedings are presumptively secret in New York.
Showing grand jurors this evidence retroactively tainted the indictment, Trump argues.
“Because an Indictment so tainted cannot stand, the charges must be dismissed,” a lawyer for Trump, Todd Blanche, writes in the filing.
Read the Trump motion to dismiss his hush-money indictment and his verdict here.
Prosecutors have until July 24 to respond to Trump’s filing. New York Supreme Court Justice Juan Merchan has said he will rule on Trump’s immunity claims in a written decision on September 6.
Merchan set a sentencing date of September 18 and that date remains on the court schedule pending the judge’s decision.
Trump’s defense team had warned in a one-page court filing just hours after the landmark immunity opinion was published that it would be using it to challenge his May 30 hush-money conviction.
That July 1 filing — a letter to Merchan — sketched out some of the same arguments made more fully by Blanche on Thursday.
The jury that convicted Trump should never have been shown official-act evidence, the letter had argued.
The defense argued that this now-forbidden evidence included phone logs from Trump’s first two years in office, incriminating 2018 tweets from his personal Twitter account, a government ethics form he signed in 2018, and testimony by former White House Communications Director Hope Hicks about a 2018 conversation she had with Trump in the Oval Office.
Thursday’s filing cites all of this evidence, then goes further.
The jury should also have never heard testimony by Madeleine Westerhout, a special assistant to the president in 2017, the filing argues.
Westerhout was subpoenaed by prosecutors to tell jurors about Trump’s hands-on, micromanaging involvement in his personal and business finances during his first year in office.
The testimony was meant to bolster prosecution arguments that Trump knew what he was doing when he signed nine monthly hush-money reimbursement checks over to his then-attorney, Michael Cohen.
Jurors also saw a March 20, 2018, text exchange between Westerhout and Hicks. In it, Westerhout asked, “Hey- the president wants to know if you called David pecker [sic] again.”
Prosecutors argued the texts showed Trump’s hands-on involvement in a hush-money, “catch-and-kill” conspiracy with former National Enquirer publisher David Pecker.
