President Trump is asking the New York judge, Juan Merchan, who presides over his hush-money case, to dismiss the criminal conviction and the indictment in the wake of the recent Supreme Court ruling on presidential immunity. 

“In order to vindicate the Presidential immunity doctrine … the jury’s verdicts must be vacated and the Indictment dismissed,” defense attorneys Todd Blanche and Emil Bove wrote in their motion, which was made public on Thursday. Throwing out Trump’s criminal conviction could potentially trigger a new trial, but throwing out the indictment as well would stop prosecutors from charging Trump again. 

“No President of the United States has ever been treated as unfairly and unlawfully as District Attorney Bragg has acted towards President Trump in connection with the biased investigation, extraordinarily delayed charging decision, and baseless prosecution that give rise to this motion,” the defense said in their 55-page long filing. 

Mr. Bragg, the Manhattan district attorney, successfully charged Trump with falsification of business records in a scheme to interfere with the 2016 election. After a six week long trial at Manhattan criminal court, during which Trump had to be present in the courtroom every day, the jury found  him guilty on all 34 felony counts and Trump became the first former president in the history of America to be convicted of a crime. 

Hours after the Supreme Court released its decision on presidential immunity on July 1, Trump’s attorneys sent a letter to Judge Merchan, asking him to dismiss the guilty verdict. The district attorney’s office responded that they did not agree with Trump’s claims that the Supreme Court decision impacted their case, but prosecutors agreed to delay the sentencing, which was originally scheduled for Thursday. 

Judge Merchan granted the defense’s request to file a motion to challenge the verdict. After the district attorney’s office answers, by July 24, the judge said he would rule on the motions on September 6, as the Sun reported. He adjourned the sentencing, “if such is still necessary,” to September 18. 

The historic Supreme Court ruling granted some immunity protections to presidents and former presidents from prosecution for actions relating to the core powers of their office, and at least a presumption that they have immunity for their official acts. The decision further restricts prosecutors from using official acts as evidence. But it does not define what exactly constitutes an official act, leaving that to lower courts.

In their motion, Trump’s attorneys criticized Mr. Bragg for rushing the case and proceeding on a “highly expedited basis,” instead of waiting until the Supreme Court released its decision. Trump’s trial began April 15. The Supreme Court heard arguments on the immunity matter on April 25.  

“Rather than wait for the Supreme Court’s guidance, the prosecutors scoffed with hubris at President Trump’s immunity motions and insisted on rushing to trial despite the fact that ‘no court has ever been faced with the question of a President’s immunity from prosecution,’” the defense attorneys fumed in their motion. “The record is clear: DANY was wrong, very wrong,” they added, referring to the district attorney.  

In early April, Judge Merchan had rejected Trump’s request to delay the trial and to exclude evidence based on presidential immunity, stating that Trump knew of the immunity question for several months and was raising it too late. The judge cited a New York law, which requires such pre-trial motions to be filed within 45 days of a defendant’s arraignment. Trump had been arraigned a year earlier, in April 2023.   

However, Trump’s attorneys now argue that the New York law doesn’t apply to motions seeking to keep evidence out of a trial, and the evidence used in the trial is at the core of their argument.  

Mr. Bragg accused Trump of ordering his former personal lawyer and current nemesis, Michael Cohen, of paying $130,000 to the adult film star, Stormy Daniels, whose real name is Stephanie Clifford, on the eve of the 2016 presidential election to buy her silence about her claim that she had a single sexual encounter with Trump at a celebrity golf tournament at Lake Tahoe in 2006. The prosecution further accused Trump of disguising his reimbursement of the hush-money to Cohen as a legal fee. Trump denies all the charges and the sexual encounter. During his June 27 debate with President Biden, he said, “I didn’t have sex with a porn star.”

It is essential to note that Trump allegedly repaid Cohen in 2017, when he was president and residing in the White House. 

“DANY violated the Presidential immunity doctrine and the Supremacy Clause by relying on evidence relating to President Trump’s official acts in 2017 and 2018 to unfairly prejudice President Trump in this unprecedented and unfounded prosecution relating to purported business records. Much of the unconstitutional official-acts evidence concerned actions taken pursuant to ‘core’ Executive power for which ‘absolute’ immunity applies,” Trump’s attorneys argued. 

Especially troubling is the testimony of two of Trump’s close aides, his former communications director Hope Hicks, and his former Oval Office assistant, Madeleine Westerhout. 

Ms. Hicks, who testified during the trial in May and cried on the witness stand, told the jury that Trump said he preferred the story of his alleged affair with Ms. Clifford to become public, if that was unavoidable, after the 2016 election.

“I think Mr. Trump’s opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election,” Ms. Hicks testified. Prosecutor Joshua Steinglass called the testimony “devastating,” and referred to it during his closing argument.

“DANY used its subpoena power to require Hope Hicks to testify about her interactions with President Trump during his first term in office,” Trump’s attorney argued, deeming any conversations between Trump and his communications director to be part of his official duties as president.

The same holds true, his attorneys found, for conversations with Ms.Westerhout, who told the jury about scheduling a meeting between Cohen and Trump in February 2017, where they allegedly discussed the reimbursement of the hush-money payment. 

The testimony isn’t the only evidence Trump’s lawyers are questioning. They also point to tweets the prosecution cited as evidence, and phone calls Trump made, all white in the White House, and a government ethics form in which Trump said he “fully reimbursed” Cohen in 2017 for expenses incurred in 2016. 

Prosecutors said the ethics form showed that Trump falsified records by mischaracterizing reimbursements to Cohen for Ms. Clifford’s hush money payment as monthly expenses under a legal retainer agreement that didn’t actually exist. 

The biggest challenge for the defense is the question of what is an official act. Last summer, Trump attempted to move the case from state to federal court, arguing that Mr. Bragg was submitting official-acts evidence, which related to Trump’s duties as president. But a federal judge rejected that argument.

“Even if I become a judge I can still write checks for my milk delivery. The court is capable of private acts as is the president,” the federal district court judge, Alvin Hellerstein, said during the hearing in June 2023.