A Close Look at Trump’s Immunity Objections to His N.Y. Convictions

With the filing of Donald Trump’s reply memorandum on Aug. 1, briefing is now complete on whether the former president’s 34 felony convictions, handed down by a Manhattan jury on May 30, can survive the U.S. Supreme Court’s July 1 presidential immunity ruling. New York State Supreme Court Justice Juan Merchan has pledged to rule on that question by Sept. 6 and, if he rules for the People, to then proceed to Trump’s sentencing on Sept. 18. 

It is impossible to predict outcomes with any confidence, given that Trump’s motion is based on doctrines that were unknown to American jurisprudence until about 10:29 a.m. on July 1, when the Supreme Court unveiled them. In addition, and as the briefing amply reveals, the Supreme Court’s ruling is opaque, vague, and ambiguous. When Justice Merchan retrospectively applies that Court’s decision to the trial record of the Trump prosecution, his ruling will consist of wall-to-wall holdings of first impression.

Ten days after the Supreme Court ruled, Trump moved to vacate his New York convictions, which were for falsification of business records in the first degree. He argued that six categories of evidence introduced against him at trial—encompassing dozens of exhibits or snippets of testimony—should not have been admitted because they implicated “official acts” for which he was immune under the Supreme Court’s Trump v. United States ruling.

Manhattan District Attorney Alvin Bragg, Jr., responded in a 69-page opposition brief last week, offering an array of arguments for why the U.S. Supreme Court’s ruling on presidential immunity should have no impact on the verdict.

Justice Merchan will need to resolve a wide range of vexing issues. These will involve not only fact-intensive inquiries surrounding the admissibility of the six disputed categories of evidence but also resolution of such procedural questions as: Did Trump waive his immunity-based objections by not raising them in a timely fashion? If any inadmissible evidence was admitted, was it “harmless error”—a doctrine that bars new trials based on errors that had “no reasonable possibility” of changing the verdict? Or do violations of the Supreme Court’s new holdings, as Trump maintains, constitute such “deeply prejudicial error that strikes at the core of the government’s function” that they can “never” be harmless?

Notwithstanding this daunting legal landscape, there is a good chance that Bragg’s arguments will prevail before Justice Merchan and, perhaps, through the New York state appellate courts. But if the U.S. Supreme Court chooses to review the case itself—which it can now clearly do, because, post-Trump v. United States, the case presents federal questions galore—responsible predictions are impossible.

What the Supreme Court Did in Trump v. United States

Notwithstanding the large number of issues raised by Trump’s motion, only one slim portion of the Court’s Trump v. United States ruling has any possible bearing on the New York case. To review, most of the majority ruling, written by Chief Justice John Roberts, dealt with the question of whether former presidents can be charged with crimes for conduct alleged to involve official acts during his or her tenure in office and, if so, which kinds of official acts. The 6-3 majority’s two key holdings in this regard were that official acts relating to the president’s exercise of “core constitutional powers”—so-called conclusive and preclusive powers—are absolutely immune, while all other acts “within the outer perimeter” of the president’s official duties are, at a minimum, “presumptively” immune. The majority suggests—but does not decide—that the government “might” be able to overcome this presumption if it can show that the prosecution would “pose ‘no dangers of intrusion on the authority and functions of the executive branch.’”

Section III-C

Trump has never argued—and does not argue now—that the New York indictment charges crimes for his official presidential conduct. Such a contention would have been unsustainable. As the People summarized the charges in their filing last week:

[T]he People alleged that defendant falsified business records to conceal an illegal scheme to suppress negative information about defendant before the 2016 presidential election. The business records that formed the basis for the charges fraudulently stated that certain payments that defendant made after the election to his personal attorney Michael Cohen were for legal expenses pursuant to a retainer, when in fact they were to reimburse Cohen for hush-money payments Cohen paid before the election as part of the criminal conspiracy to corrupt the election.

Trump’s 34 convictions stemmed from false entries in private ledgers, invoices, and personal checks that, according to the jury, Trump used to hide his reimbursement of Cohen’s $130,000 hush-money payment to adult film actress Stormy Daniels in October 2016. These false business records were generated after Trump became president, from February through December 2017. Accordingly, the prosecution had to offer evidence relating to the period after Trump became president.

The part of Trump v. United States that is relevant to People v. Trump is Section III-C. In it, the majority of the Supreme Court—minus Justice Amy Barrett Coney, who rejected this portion of the decision—went a step further. It ruled that even if a former president is being prosecuted for unofficial acts, the prosecution can still be precluded from presenting to a jury evidence of “official conduct for which the president is immune,” even for the limited purpose of establishing, for instance, the former president’s knowledge of his or her own unofficial criminal wrongdoing. Roberts wrote that the government’s proposal that it be permitted to present such evidence:

threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. ... Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted.

Justice Barrett disagreed with this holding, writing in her concurrence, “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”

The majority did, however, recognize an exception to its evidence-preclusion rule in its cryptic footnote 3. Specifically, it said that a “public record” of an official act would “obviously” be admissible. Lawfare recently explored the ins and outs of this murky exception in “What’s Going On in Footnote 3.” The gist of it seems to be the following:

But of course the prosecutor may point to the public record to show the fact that the President performed the official act. ... What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “‘seriously cripple’” the President’s exercise of his official duties. 

In his reply brief, Trump makes the audacious argument that footnote 3 applies only to a single crime—bribery—and, therefore, has no applicability to his New York case. That is clearly wrong. In the footnote, Chief Justice Roberts is engaging with an argument Justice Barrett made in her concurrence, in which she used an illustrative hypothetical involving a bribery charge, which Barrett calls “a useful example.” Roberts understood her bribery hypo to be exactly that, addressing Barrett’s argument involving “a bribery prosecution, for instance” (emphasis added). Neither Barrett nor Roberts hinted in any way that bribery was a unique crime. If it were, it would provide the opposite of a “useful example”; it would provide a singularly pointless and misleading example—one shedding no light whatsoever on the case Roberts and Barrett were deciding, the federal election-interference case against Trump, which also involves no bribery charges.

Trump’s toehold for this mistaken argument is that an earlier portion of the Supreme Court ruling discusses the need for the district court to closely analyze allegations in the federal indictment relating to “Trump’s communications in the form of Tweets and a public address.” Trump writes that if footnote 3 created an exception for admitting public records, “the Supreme Court would not have devoted an entire subsection of Trump to analyzing public statements (including Tweets).”

But Trump is mixed up. The passage he’s citing, from Section III-B of the ruling, relates to distinguishing official from unofficial acts for the purpose of deciding whether a president may be held criminally liable for those acts. Footnote 3 appears in Section III-C of the ruling, which addresses a different question: Whether official acts can ever be used as evidence in a prosecution of a former president for concededly unofficial acts. In footnote 3, Roberts explains that, while some official acts evidence must be excluded from evidence in such cases, public records of official acts are “obviously” an exception.

How This All Applies to the New York Case

The upshot of all this is that the People advance up to five arguments for admitting each of the six categories of official acts evidence that Trump claims were improperly used against him at trial. Two arguments are procedural, and three are substantive:

1. Trump waived the objection by not raising it in a timely fashion.
2. The evidence in question does not involve an official act at all.
3. The evidence in question, though possibly an official act, is not “official conduct immune from prosecution” because the presumption of immunity can be rebutted.
4. The evidence in question, though maybe an official act, is a “public record” admissible under the exception carved out in footnote 3.
5. Even if the evidence was inadmissible under Trump v. United States, the error was “harmless,” not warranting a new trial.
   

The Waiver Issues

First, the People argue that Trump waived his opportunity to object to at least four of the six categories of evidence that he now challenges. It’s a seductive argument in that it offers the prospect of doing an end run around scores of thorny questions of first impression. But the record on this question is a long and winding road. In the end, the People’s waiver arguments are wobbly and may not carry the day.

Here’s the timeline: Trump was indicted on March 30, 2023. Justice Merchan set a deadline for omnibus motions—that is, a filing consolidating multiple pretrial motions—for Sept. 29, 2023. Trump filed multiple motions on that date, but none raised presidential immunity issues. Six days later, on Oct. 5, Trump filed a motion to dismiss the federal election interference case against him in Washington, D.C., based on absolute presidential immunity. So there’s no question he was fully aware of the potential issues. According to a 2023 ruling of the New York Court of Appeals, cited by the People in their submission, “preservation [of objections] is essential ... even if governing law was [later] altered by an intervening Supreme Court decision” that “effected a dramatic change in the law.” 

In December 2023, as the New York trial approached, Justice Merchan set a deadline of Feb. 22, 2024, for motions in limine—motions specifically focused on challenging the admissibility of evidence. On the appointed date, Trump filed multiple motions in limine. Again, none proposed precluding evidence of official acts. So far, so good, for the People.

Beyond those two unambiguously missed pretrial deadlines, the People argue that Trump waived a third opportunity to raise immunity issues prior to trial. This third argument is a weak one, however, because the dispute that was litigated didn’t focus on evidentiary issues. The People’s argument here stems from the fact that, in May 2023, Trump removed the People v. Trump prosecution to federal court under a statute allowing a “federal officer” to do so if the charges against him are for conduct “relating to any act under such office.” Under the relevant case law, Trump also had to identify a “colorable federal defense” to the charges in order to persuade the federal judge to keep the case in federal court. In July 2023, U.S. District Judge Alvin Hellerstein sent the case back to state court, finding that Trump had failed to make either showing required to remove the case. He ruled that “[h]ush money paid to an adult film star is not related to a President’s official acts,” and “reimbursing Cohen for advancing hush money to [Stormy Daniels] cannot be considered the performance of a constitutional duty.” Though Trump initially filed a notice of appeal from Hellerstein’s ruling, he withdrew it on Nov. 15, 2023—which the People characterize as a third instance of waiver.

In any event, let’s return to the timeline on waiver issues—which gets murkier. On Feb. 28, 2024, the Supreme Court granted review in Trump v. United States. About a week later, on March 7—two weeks after Justice Merchan’s deadline for motions in limine and almost 23 weeks after his deadline for omnibus motions—Trump filed a motion to postpone his New York trial, then set to start March 25, until after the Supreme Court had rendered its immunity ruling, and to preclude admission of all official acts evidence.

On April 3, Justice Merchan rebuffed the motion as “untimely,” finding that the issues should have been raised in Trump’s omnibus motions in September 2023. He noted that the timing of the motion—17 days before the scheduled trial date—“raised questions about the sincerity and actual purpose” of the motion.

It is understandable that Justice Merchan apparently viewed this motion as just the latest in a string of ploys by Trump to postpone the trial until after the election—a goal Trump’s counsel had been candid about pursuing. Perhaps New York appellate courts will see matters the same way. That said, if this case should ever be reviewed by the U.S. Supreme Court, the majority justices could well be quite unforgiving toward errors that, from their perspective, could have been avoided if Justice Merchan had simply postponed the trial until he’d had a chance to hear from them.

On April 15, the first day of jury selection, the People described to Justice Merchan evidence they planned to introduce of a “pressure campaign” Trump allegedly conducted while he was president to persuade Cohen not to cooperate with federal prosecutors. Some of this evidence includes Trump tweets that Trump now characterizes as “official acts.” Justice Merchan granted Trump’s request to preclude the evidence but said he would reconsider if Trump “opened the door” by making arguments at trial that would render the evidence relevant.

That evening, according to the People’s submission, Trump filed a letter seeking to preclude the People from introducing official acts evidence at trial. On April 19, Justice Merchan orally reserved decision on the motion in these terms: “We are going to wait until trial and you can make your objections at that time. ... [T]he Court will decide it at the time of trial when the objection is made.”

Now let’s interrupt the timeline for a moment to address a side argument that Trump makes for vacating his convictions. Trump argues that, in the unique context of the prosecution of a former president and in the wake of Trump v. United States, what Justice Merchan did here, in postponing evidentiary rulings until he could see the issue in context—a routine and sensible approach to evidentiary disputes—was grave error. Under the Supreme Court’s later ruling, Trump argues, Justice Merchan was required to decide all evidentiary questions about official acts in advance of trial. Trump bases his claim on a passage from the Supreme Court’s ruling in which Justice Roberts writes: “Questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding,” affording the defendant “pretrial review” of all these questions. Indeed, it is this sort of pretrial hearing that U.S. District Judge Tanya Chutkan will apparently now have to perform in the federal election interference case in Washington, D.C., and which may then be, itself, subject to interlocutory appeal—possibly all the way to the Supreme Court, again.

But, as the People responded, the chief justice’s own quoted words show that he was only referring to “questions about whether the [former] President can be held liable for particular actions” (emphasis added). Roberts was not referring to whether official acts evidence could be used in a prosecution for concededly unofficial conduct, for which there is no question that a former president can be held liable. Once again—as was the case with Trump’s misguided argument for vaporizing footnote 3 of the opinion—the chief justice’s cited words appear in Section II-B of the ruling, relating to when former presidents can be held criminally liable for their official acts. Roberts does not mention any need for pretrial review in Section III-C, where the Court addresses only the ancillary issue of whether official acts can be introduced as evidence in criminal cases stemming from unofficial acts. This People’s argument here seems correct.

The chronology relevant to waiver questions resumes on April 30, by which time trial has started. The People renewed their request to introduce evidence of Trump’s “pressure campaign,” arguing that Trump’s attorney had “opened the door” during his opening statement. Justice Merchan agreed, ruling that he would now allow that evidence, but only for the limited purpose of showing its impact on Cohen’s actions—not to show Trump’s consciousness of guilt.

Thereafter, the People claim that Trump raised specific official acts objections to only two of the six categories of official acts evidence about which he now complains. On May 3, for instance, Trump did object to any testimony by Hope Hicks about Trump’s statements to her in 2018 when he was president and she was White House communications director. And on May 6, Trump unambiguously objected to admission of a financial disclosure form he filled out while president, Office of Government Ethics (OGE) Form 278(e). (These pieces of evidence will be discussed further below.)

Trump protests in his reply brief that all of his objections to official acts were preserved by his March 7 and April 15 filings with Justice Merchan and that the judge discouraged Trump from reraising specific objections thereafter. Trump points to the objection his attorney, Emil Bove, lodged on May 3, when he objected to portions of Hicks’s testimony:

MR. BOVE: We object to the subject of her testimony ... our position being that that testimony is evidence of official acts being presented at a criminal trial against the President, and it should be precluded. ...

THE COURT: I believe I ruled on this as well. So the objection is noted. I don’t think you need to object to each question.

It’s unclear exactly what Justice Merchan meant in this exchange. Was he simply ruling that Bove need not raise objections to every question put to Hicks, or was he saying, as Trump argues, that Trump had preserved his official acts objections to any category of evidence and Merchan didn’t want continual interruptions on that score? I tend to read it the way the People do, but, on this record, the People’s waiver arguments are not airtight.

Trump objects to six categories of evidence:

1. Hope Hicks’s testimony.
2. OGE Form 278(e).
3. Four Trump tweets (part of the “pressure campaign”).
4. Madeleine Westerhout’s testimony.
5. Cohen’s testimony about the FEC investigations.
6. Cohen’s testimony about investigations by Congress and prosecutors.

Category 1: Hope Hicks’s Testimony

Of the six categories, Hicks’s testimony presents the toughest questions. Trump clearly objected to key portions of it, and some of that testimony was so dramatic that, if improperly admitted, it’s unlikely that the error can be brushed off as “harmless.”

Trump objects to all of Hicks’s testimony about events that occurred in 2018. But the most sensitive passage, which is representative of the other passages in terms of the issues presented, concerned the events that occurred after Jan. 12, 2018, when the Wall Street Journal reported that Trump’s personal lawyer Cohen had “arranged” a payment of $130,000 to Stormy Daniels in October 2016. Hicks, who was then White House communications director, had a series of conversations with then-President Trump in the White House. Trump appears to have been consulting with her for multiple reasons, some of which were doubtless official but some of which might have been unofficial. In part, for instance, he wanted to know how the White House should respond to the Journal’s revelation—a subject the prosecution didn’t specifically explore. But he also chatted with her about how damaging she thought the revelations were—a fuzzy area. Prosecutors then elicited that, in February 2018, Cohen also told the New York Times that he had made the $130,000 payment out of his own pocket and had never been reimbursed for it directly or indirectly. On her direct testimony for the People, Hicks testified that she had had a conversation with Trump the day after the Times story came out in which Trump told her he had spoken with Cohen:

Q: Did he say anything about the timing of the news reporting regarding—

A: Oh, he—yes.

He wanted to know how it was playing, and just my thoughts and opinion about this story versus having the story—a different kind of story before the campaign had Michael not made that payment. And 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.

Assistant District Attorney Matthew Colangelo then sat down, letting that last answer resonate in jurors’ ears. (See “Fireworks and Waterworks: Davidson and Hicks on the Stand.”) Trump attorney Bove then stood up and began a gentle cross-examination, but before he could get past preliminaries, Hicks began to sob. Justice Merchan called a recess. Many observers—including Lawfare’s correspondents in the courtroom—regarded it as one of the most dramatic moments in the six-week trial. Later, in his summation, Assistant District Attorney Joshua Steinglass read this testimony back and said:

That is devastating.

And that’s from the Defendant’s own Communications Director, who still respects and admires the Defendant so much. That was the last thing she said on direct.

And she basically burst into tears a few minutes—a few seconds after that. Because she realized how much this testimony puts the nail in Mr. Trump’s coffin.

MR. [Todd] BLANCHE: Objection.

THE COURT: Overruled.

MR. STEINGLASS: This means that any desire to protect his wife from finding out about Stormy Daniels was far less significant for him than his desire for winning the 2016 election. It’s better to deal with it now in 2018, regardless of Melania’s feelings, than it would have been to deal with it before the election.

The People devote 23 pages of their submission—about a third of the total—to their “harmless error” arguments. There they detail the “overwhelming” proof the prosecution marshaled against Trump and argue that the snippets of testimony or isolated exhibits that Trump now disputes were just cumulative (i.e., redundant) of other unchallenged evidence. While that section is persuasive with respect to most of Trump challenges, it falls short with respect to Hicks’s testimony. Given that testimony’s emotional and probative power—which Steinglass recapitulated well in his summation—the People probably will have to show that that testimony was admissible if they hope to avoid seeing Trump’s convictions vacated and facing a new trial.

Fortunately for the People, they have some cogent arguments that Hicks’s testimony was admissible. They argue that the testimony concerned either entirely unofficial acts or official acts whose presumptive immunity can be rebutted. Chief Justice Roberts’s key concern throughout his ruling was to avoid situations in which jurors would “examine,” “probe,” “inquire into,” or “second-guess” presidential actions in a way that could—if the president anticipated that juries might be doing so—“distort … the President’s official decisionmaking.” But there was no probing of presidential actions here and no impending presidential decision-making on the table. As the People argue, “There is no risk of interference with such official decision-making when, as here, the President’s discussions with his Communications Director concern a purely private matter, and when the testimony did not describe any discussions about official acts to be done in response to the private matter.”

Although Hicks may have assisted Trump in issuing White House statements about the pre-presidency scandal, that wasn’t the subject of her testimony. As the People write:

Hicks described [her meetings with Trump] as private conversations between herself and defendant unconnected to any public statement to “the American people” . ... The private and unofficial nature of this conversation is reinforced by the fact that defendant’s reference to the period “before the election” appears to be invoking Hicks’s prior role as the Press Secretary for defendant’s campaign ... —thus discussing with Hicks a period of time when both were necessarily engaged in unofficial conduct.

Trump argues that all of Hicks’s testimony about events from 2018 concerned “core Article II authority for which [former] President Trump is entitled to absolute immunity.” But that argument borders on the silly, for reasons the People’s brief details here:

[T]he Court held that not all of a President’s discussions [even] with his Vice President would qualify as official conduct subject to absolute immunity. ... If even a President’s discussions with a constitutional officer like the Vice President ... are not categorically entitled to absolute immunity, then the same must be true for an official like the White House Communications Director .... Rather, whether immunity attaches at all to any particular discussion involving the Communications Director—and whether any immunity may be rebutted—requires a particularized and “fact specific” analysis of the nature and context of the discussion and the persons involved.

Hicks’s testimony may survive scrutiny before both Merchan and the New York appellate courts. But given the opacity of the Supreme Court’s ruling and the unavailability of a “harmless error” backup argument, the same caveat cautioning against confident predictions applies here.

Category 2: OGE Form 278(e)

The other piece of evidence for which Trump unquestionably preserved his official acts objection was a financial disclosure form that then-President Trump filled out in May 2018. On page 45 of the 92-page document, the form provides an apparent admission that the monthly payments Trump made to Cohen in 2017 were not for a legal retainer, as asserted in various business records but, rather to “reimburse” “expenses incurred” by Cohen in 2016.

The introduction into evidence of this form should give the People little cause for worry. Even assuming the execution of this form was an official presidential act, the form itself appears to fall clearly into the “public record” exception of footnote 3.

In any event, as the People argue, it’s a stretch to characterize the form as a presidential act at all. Its execution is required of a great many public officials besides the president—including numerous executive branch officials; members, officers, and employees of Congress; judicial officers and employees—as well as mere candidates for public office, regardless of whether they are elected. Its purpose is to lay out the candidate’s or official’s private finances. At trial, the prosecution introduced this form through Trump Organization employee Jeffrey McConney, who never held any position in the Trump administration. McConney was the one who prepared the form, and he stored it in the Trump Organization’s private records.

Trump’s argument about OGE Form 278(e) is a loser.

Category 3: Four Trump Tweets

Next, Trump complains about the admission into evidence of four of his tweets (or tweet threads) from 2018, including one from April, one from May, and two from August. Some of these were offered as evidence of the public pressure campaign Trump exerted on Cohen to try to keep him from cooperating with federal prosecutors. The third is a garbled, partial admission: “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.”

Assuming for the sake of argument that these are, in fact, official acts at all—which is dubious—they fall cleanly into the “public record” exception of footnote 3. It would be anomalous if statements Trump tweeted out to millions of followers had to be withheld from jurors and jurors alone.

Category 4: Madeleine Westerhout’s Testimony

Madeleine Westerhout was a special assistant to the president who sat outside the Oval Office. The prosecution called her to testify about many seemingly pedestrian issues. She testified about Trump’s work habits, how he handled his private affairs from the White House, how he received packages and wrote personal checks, how calls were made and received at the White House, who Trump’s regular contacts were, and what his social media practices were. To draw from some examples that Trump complains about in his brief, she testified, for instance, that Trump made a “lot” of calls each day, that he “liked speaking to people in person or on the phone[,]” that he “liked hard copy documents” and didn’t use a computer or email account, and that he “preferred to sign things himself.”

Much of her testimony was anodyne—the sort of thing that White House aides and advisers routinely write about in memoirs. In fact, Westerhout herself wrote a book about her experiences there. Nevertheless, Trump argues that because she testified about “Trump’s exercise of Article II authority from the Oval Office,” her testimony must be precluded as relating to official acts that were either absolutely immune or presumptively immune and not susceptible to having the presumption rebutted.

It’s hard to see how a president’s fear of having a low-level aide later testify about such matters would so distort that president’s executive decision-making as to render him “unable to boldly and fearlessly carry out his duties”—the principal concern of the Trump v. United States majority. When one adds the possibility that Trump may have failed to preserve his objections to Westerhout’s testimony, and that any error might be harmless, the People have a reasonably strong hand here.

Category 5: Cohen’s Testimony About the FEC Inquiries

In 2018, the Federal Election Commission (FEC) commenced investigations into whether the 2016 hush money payment to Stormy Daniels and a second such 2016 payment—to Karen McDougal, who said she had had an extended affair with Trump—violated campaign finance laws. Trump complains that, in the course of private attorney Cohen’s testimony about these inquiries, prosecutors introduced a series of texts Cohen sent to New York Times reporter Maggie Haberman (a private party) and a text he received from Jay Sekulow, a private attorney for Trump. They also elicited from Cohen a statement he’d made to yet another private party, David Pecker, the CEO of American Media Inc. (AMI), the company that paid the hush money to McDougal. On their face, none of these pieces of evidence implicates any official presidential act at all. 

Trump claims that the texts must be precluded because they relate to a “public communications” strategy that then-President Trump was orchestrating to respond to the investigations.

But the People didn’t offer evidence about any such public communications strategy. In the first texts, from February 2018, Cohen told Haberman that Trump had “approved” a (false) statement that he, Cohen, was about to make to the FEC because he, Cohen, was under scrutiny. So, as the People observe, the texts relate, at most, to a public communication that private attorney Cohen was making on his own behalf about unofficial pre-presidency acts; they aren’t about a public communication by then-President Trump.

Similarly, the text from private attorney Sekulow merely thanks private attorney Cohen for the (false) statement Cohen had just filed with the FEC on Cohen’s own behalf relating to the pre-presidency hush money payment to Daniels. (“Client says thanks for what you do.”)

Finally, Trump objects to Cohen having testified to a comment Cohen made to private citizen Pecker assuring him that the FEC’s investigation of Pecker and AMI was “going to be taken care of” by then-Attorney General Jeff Sessions. Cohen testified that his understanding—that Sessions would get involved—came from a conversation with Trump.

Without conceding that any such conversation between Trump and Cohen about Sessions ever occurred, Trump argues that such proof implicates Trump’s “conclusive and preclusive authority” to “decide which crimes to investigate and prosecute.” Trump is quoting the language Chief Justice Roberts used in finding that Trump’s allegedly corrupt efforts to enlist the Department of Justice into his scheme to overturn the 2020 election were immune from criminal prosecution.

But while the attorney general does have power to investigate and prosecute federal crimes, the People respond, neither the attorney general nor the president has any power over the FEC, which is an independent administrative agency. In addition, Cohen’s understanding of what Trump told him about Sessions may just reflect an “empty promise from [Trump] to reassure his private attorney about an independent agency’s investigation into private affairs,” the People argue. 

The People’s argument here seems sound, while Trump’s appears strained.

Category 6: Cohen’s Testimony About Other Investigations

During his direct testimony, Cohen preemptively admitted—anticipating that he would be grilled on it during cross-examination—that he had repeatedly lied to congressional investigators and to prosecutors from the special counsel’s office in 2017 and 2018. He testified that he had done so largely to protect Trump and to stay “on message that there was no Russia-Russia-Russia and, again, in coordination with the Joint Defense Team, that’s what was preferred.”

Trump claims that this testimony once again implicated Trump’s public communications strategy in response to the investigations. But Cohen was just explaining his own state of mind—why he perjured himself. He never testified about Trump’s official statements regarding either investigation.

Trump also objects to Cohen’s allusion to Trump’s pardon power in his testimony. Trump argues that these references should have been precluded because the pardon power is “one of the ‘core’ constitutional powers ‘invested in [the president] by the Constitution.’” But what Cohen testified about were veiled overtures made to him in June 2018 by Robert Costello, a private attorney for Rudy Giuliani, who was, in turn, a private attorney for Trump. In an email, private attorney Costello obliquely advised private attorney Cohen:

[M]y friend has communicated to me that he is meeting with his client this evening and he added that if there was anything you wanted to convey you should tell me and my friend will bring it up for discussion this evening.

Cohen testified that he understood Costello to be referencing a discussion about “potential pre-pardons.” Cohen also testified: “I spoke to my attorney about it because we had seen on television President Trump talking about, potentially, prepardoning everybody and putting an end to this, what I deemed to be a nightmare.” 

The People responded:

But defendant was not a party to that email exchange; the participants did not say that they had lodged the pardon request with defendant; the exchange did not attribute any comments to defendant; and defendant never pardoned Cohen. Indeed, as defense counsel argued during trial, “[t]here is zero evidence that anything that Mr. Costello said to Mr. Cohen came from President Trump.” ... A private conversation between two private individuals about a pardon they never requested from defendant and that defendant never granted is not testimony about any official presidential act.

That sounds about right.

Why This Is Hard

What makes all the questions stemming from Trump v. United States so difficult is not just the ambiguity of the ruling, but its premise. Judges are typically in the business of trying to afford justice within the constraints of the law. But the premise of any immunity doctrine is that justice may need to be sacrificed in order to serve some purportedly higher goal. Here, the majority justices’ stated goals were that presidents must be free to act “boldly and fearlessly” and “without undue caution” and that the executive branch must not be allowed to devolve into one that “cannibalizes itself, with each successive president free to prosecute his predecessors.”

Certainly, trial-level and appellate court judges will diligently try to carry out the Supreme Court’s will—to the extent they can discern it. But they will also likely interpret the Supreme Court’s ruling narrowly, in order to avoid freeing criminals to the greatest extent possible.

If the case winds its way back to the Supreme Court, however, it will find itself in a qualitatively different forum, where the majority justices believe in those purportedly higher goals. We will just have to sit tight and wait to learn what additional surprises may lurk in the penumbras of our Constitution.