After the SCOTUS immunity decision, it may not take much to force a hush-money retrial. An ethics form the DA showed jurors in May might do the trick.
Jeffrey Phelps/AP
It might not take much to scuttle Donald Trump's May 30 hush-money conviction.
In fact, a single piece of evidence could be Trump's handiest monkey wrench of all.
Manhattan prosecutors labeled it People's Exhibit 81.
It's a routine federal ethics form called an "Executive Branch Personnel Public Financial Disclosure Report."
Manhattan prosecutors showed it to jurors back in early May, during the third week of testimony.
They later spun it as solid proof that Trump knew his hush-money reimbursement checks to his then-attorney, Michael Cohen, were just that: reimbursements, not "legal fees," as his falsified business records claimed.
"Mr. Trump fully reimbursed Mr. Cohen in 2017," claimed the form, which attested to his assets and liabilities and bore his signature.
Manhattan district attorney's office/BI
Days before closing arguments, Business Insider highlighted People's 81 as one of ten pieces of incriminating "smoking gun" evidence.
Prosecutor Joshua Steinglass went on to mention People's 81 in closing arguments, calling it proof that Trump "knew that the payments were really reimbursements."
Manhattan District Attorney's Office/BI
Then came Monday.
In a sweeping decision that fell just ten days before Trump's original sentencing date, the US Supreme Court declared former presidents presumptively immune from criminal prosecution for "official acts."
Then the court went further, banning the use of official acts as evidence.
SCOTUS/Business Insider
It took less than a day for defense lawyers to use this ban on "official act" evidence to challenge Trump's May 30 conviction. It's a challenge that has now delayed Trump's July 11 sentencing on the grounds that hush money prosecutors improperly used Trump's official acts against him at trial.
People's Exhibit 81 — a financial disclosure form that must be filed by all senior US government officials, and which Trump only filed because he was president — is front and center in that defense effort.
Other "official act" evidence the defense is now challenging includes Trump phone records and tweets, and an Oval Office conversation he had with Hope Hicks, his then-communications director.
"Under Trump," defense lawyer Todd Blanche wrote Monday, referring to the SCOTUS decision, "this official-acts evidence should never have been put before the jury."
Trump "may not be prosecuted for his exercising his core constitutional powers," Blanche wrote, continuing to quote from Monday's decision.
Prosecutors with the office of Manhattan District Attorney Alvin Bragg quickly scoffed in response that Trump's efforts are "without merit."
But they were not entirely meritless — Bragg and New York Supreme Court Justice Juan Merchan both agreed to push back Trump's July 11 sentencing date so the issue can be argued in a planned volley of papers.
Trump will file his arguments by July 10, prosecutors will respond by July 24, and the judge will rule — deciding that the hush-money conviction stands or is overturned — on September 6.
Under New York Criminal Procedure Law, Merchan must decide if the SCOTUS ruling "would require a reversal or modification of the judgment as a matter of law by an appellate court."
"It would come down to two things," said Michel Paradis, an attorney who teaches national security and constitutional law at Columbia Law School.
Was the evidence or testimony "official in some way," and therefore subject to this new immunity rule? And if so, was its use at trial "a harmless error."
Ultimately — even if Merchan and New York's appellate courts uphold Trump's conviction — Trump could just make a return trip to SCOTUS.
Trump's new sentencing date will be September 18, Merchan ruled — if sentencing is "still necessary" by that date.
In hopes of setting aside Trump's verdict, Trump's lawyers raised other instances where they say "official acts" were improperly used at trial against him.
A big one is testimony by Trump's former communications director, Hope Hicks, who described to jurors Trump's reaction in the Oval Office, when news of Trump's hush-money payment to porn star Stormy Daniels first broke in 2018.
"He wanted to know how it was playing," Hicks told the jury, referring to the news coverage.
"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," she told jurors.
"That is devastating," Steinglass, the prosecutor, said of Hick's testimony, noting that it firmly linked the hush-money payment to the presidential election, a connection Trump had denied.
Paradis said prosecutors may find themselves battling with the defense over how much of Hicks' Oval Office conversation with Trump was on an official topic, and therefore banned as testimony.
Merchan — or, as is more likely, appeals judges down the line — may bar any prosecutorial use of the Hicks-Trump conversation merely because some of it may have touched on official acts, Paradis said.
The defense is also signaling that it will challenge the use of certain incriminating tweets, including one from May, 2018, in which Trump again referred to his payments to Cohen as "reimbursement" for "a non-disclosure agreement," AKA hush money.
Manhattan District Attorney's Office/BI
But these and other tweets the defense is raising as "official" were sent from Trump's personal Twitter account, and concerns, as Trump himself put it, "a private contract."
Finally, the defense said Tuesday that it will challenge as "official" the prosecution's use of phone records "reflecting calls involving President Trump while he was in office."
Again, as records of both personal and business calls, this evidence contains a mix of official and unofficial acts that must now be argued over before Merchan and any appellate judges that get the case.
Prosecutors' best bet may be to argue that financial disclosure forms like People's 81 are "personnel documents," Paradis said — "which, in the bureaucracy of the federal government would likely be deemed 'personal.'"
But whether that argument sinks or flies is anyone's guess, he told BI.
"That is the thing about this decision," he added. "It does not come right out and say 'the president is immune from all prosecution.' In some ways, it is more pernicious than that," he said.
"It just creates an immunity that is so ill-defined and so unmoored from any agreed-upon constitutional text or history, that there is no way of knowing its outer limits," he said.
"And leaving so much uncertainty about the outer limits means, for all practical purposes, that those outer limits don't exist."
