Former president Donald Trump attends fraud trial in New York
David Dee Delgado/Getty
Prosecutors are fighting to keep Trump’s hush-money sentencing on track despite any “immunity.”On Thursday, they argued it’s a harmless error if evidence he’s immune from entered the case.Trump would have been convicted despite any official-act evidence, they argue.
Manhattan prosecutors are fighting to keep Donald Trump’s September 18 hush-money sentencing on track, saying in a new filing Thursday that it was “harmless error” if evidence he’s now immune from entered the case.
Trump’s recent US Supreme Court immunity victory “has no bearing on this prosecution,” lawyers for District Attorney Alvin Bragg argue in a 69-page court filing.
“That holding has no bearing here because, as defendant does not dispute, the charges in this case all involve purely personal conduct, rather than official presidential acts,” the filing says.
Trump was indicted in April, 2023, and convicted in May, 2024, on 34 counts of falsifying business records in order to hide hush money he paid to porn actor Stormy Daniels as part of a conspiracy to illegally influence the 2016 election.
The DA’s filing is a response to defense arguments that prosecutorial immunity voids not just his conviction, but the hush-money indictment in its entirety. The SCOTUS decision found that using official-act evidence against the president is against the former president’s constitutional rights.
The defense argued the grand jurors who voted to indict Trump and the trial jurors who voted to convict him in the hush-money case were all shown significant evidence involving Trump’s official acts, and that this evidence is now retroactively inadmissible.
Donald Trump at his arraignment, with Manhattan District Attorney Alvin Bragg seated behind him.
Reuters/Jane Rosenberg
On Thursday, Bragg responded in papers signed by Matthew Colangelo, an assistant district attorney who was a lead prosecutor on the case.
The filing argues that Trump is wrong in now stamping much of the prosecutor’s case “official act evidence.”
The jury saw four incriminating 2018 tweets from Trump’s personal Twitter campaign, in which he referred private payments to Daniels by his then-personal attorney, Michael Cohen. These tweets describe unofficial acts unrelated to his official duties, and for which Trump has no immunity, the filing argues.
In tweeting, “Trump was not performing, or even describing, any official presidential act in conveying his personal opinions about his personal attorney and a private nondisclosure agreement entered into prior to his Presidency,” the filing says. “No Presidential decision-making was involved.”
The jury also heard testimony by Hope Hicks, Trump’s former White House communications director, who described an incriminating 2018 conversation in the Oval Office in which Trump expressed relief that Daniels’ claims to a one-night sexual encounter surfaced only after, not before the 2016 election.
But this conversation again involved a hush-money scheme that “was entirely personal and largely committed before the election, and it had no relationship whatsoever to any official duty of the presidency,” the prosecution filing continues.
Additional challenged evidence — an incriminating government ethics form Trump signed in 2018, and snippets of trial testimony by Cohen and by Madeleine Westerhout, Trump’s former White House assistant — all likewise concerned private, not presidential, matters, the filing says.
But even if all or any of the challenged evidence were removed from the trial, “the error was harmless in light of the overwhelming evidence of defendant’s guilt,” the filing argues.
As for tossing the underlying indictment — a move that would take Trump off the hook entirely — the papers argue that Trump would have been indicted even if grand jurors did not see what the defense calls “official act” evidence.
The submission of some inadmissible evidence during the grand jury presentation “is held to be fatal only when the remaining legal evidence is insufficient to sustain the indictment,” the filing says, quoting caselaw from 1996.
That, too, was not the case, the filing argues.
“The indictment in this case was not ‘based on’ any evidence of immune conduct,” it argues.
Instead, it argues, grand jurors relied on Trump Organization records and related testimony, evidence that showed Trump falsified business records to hide hush-money payments to porn actor Stormy Daniels as part of a conspiracy to influence the 2016 election.
Lawyers for Trump did not immediately respond to requests for comment on the prosecution filing.
The trial judge, state Supreme Court Justice Juan Merchan, has said he will issue a written decision on September 6 on whether the indictment and conviction survive this challenge.
If they do, Trump will be sentenced September 18 as planned, the judge has said.
