Just 1 piece of evidence could scuttle Trump's hush-money conviction and force a time-sucking retrial

Just 1 piece of evidence could scuttle Trump's hush-money conviction and force a time-sucking retrial
  • Thanks to the SCOTUS immunity decision, it may not take much to force a hush-money retrial.

  • One key piece of evidence, People's Exhibit 81, may be enough to scuttle Trump's May 30 verdict.

  • It's an ethics form Trump signed in 2018, and just the kind of official-act evidence SCOTUS now bans.

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.

Excerpt from a footnote in a financial disclosure form Donald Trump signed in 2018, reading, "Mr. Trump fully reimbursed Mr. Cohen in 2017."
A footnote in a financial disclosure form Donald Trump signed in 2018. 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."

Donald Trump's signature on a 2018 financial disclosure form.
Donald Trump's signature on People's Exhibit 81.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.

An excerpt from the Supreme Court's immunity decision, saying that "Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution."
An excerpt from the Supreme Court's immunity decision.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 are not being treated as 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 newly-scheduled volley of court filings.

Trump will file his arguments by July 10, prosecutors will respond by July 24, and the judge will rule — deciding if 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.

Why People's 81 may be Trump's best monkey-wrench

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, 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 in closing arguments of Hick's testimony, noting that it firmly linked the hush-money payment to the presidential election, a legally-vital connection Trump had denied.

Paradis said prosecutors may now find themselves battling with the defense over how much of Hicks' Oval Office conversation with Trump concerned an official topic, and must therefore be 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 could 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.

A May 2018 tweet by then-President Donald Trump, in which he acknowledges that Michael Cohen received "reimbursement" for  a "non-disclosure agreement.
Trump tweeted about a non-disclosure agreement in 2018.Manhattan District Attorney's Office/BI

But these and other tweets the defense is terming "official" were sent from Trump's personal Twitter account, and concern, as Trump himself put it, "a private contract" involving a very private alleged encounter with Daniels. It may be hard for Trump to argue the tweets were in any way "official."

Finally, the defense wrote Tuesday that it will challenge 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 parsed apart and argued over in front of Merchan and any appellate judges that subsequently get the case.

As for People's 81, prosecutors' best bet may be to argue that financial disclosure forms like this one 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."

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