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TRUMP’S FELONY CONVICTION APPEAL WILL SHOW HOW FULLY HE’S ABOVE
THE LAW  
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Marjorie Cohn
January 14, 2025
Truthout
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_ Trump’s appeal will decide how the Supreme Court’s presidential
immunity ruling applies to his hush money case. _

Donald Trump speaks to attendees during a campaign rally at the
Johnny Mercer Theatre on September 24, 2024, in Savannah, Georgia.,
Brandon Bell / Getty Images

 

Donald Trump has always maintained that the laws don’t apply to him.
But he failed to convince New York Supreme Court Justice Juan Merchan
to delay sentencing him this month following the May 2024 jury verdict
finding him guilty of 34 state felony counts of falsifying business
records to cover up a sex scandal in _New York v. Trump. _

Trump appealed Merchan’s denial of his motion to put off the
sentencing. Justice Ellen Gesmer, a New York appeals court judge,
affirmed
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Merchan’s ruling that the sentencing should proceed. She was not
convinced that presidents-elect enjoy presidential immunity.

Five members of the U.S. Supreme Court allowed the sentencing to go
forward. They wrote
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that “alleged evidentiary violations” in Trump’s state court
trial could be addressed during the appeals process, and the burden of
sentencing on the president-elect’s responsibilities is
“relatively insubstantial” since Merchan intended to impose a
sentence of “unconditional discharge.” Clarence Thomas, Samuel
Alito, Neil Gorsuch and Brett Kavanaugh would have prevented Merchan
from sentencing Trump.

On January 10, Merchan imposed a sentence of “unconditional
discharge” on Trump — meaning he won’t have to serve time, pay
fines or be supervised on probation. Trump had faced the possibility
of up to four years in prison.

By sentencing Trump, Merchan has entered a “final judgment”
against him. That means that the president-elect has now officially
been convicted of felonies, and he can appeal his convictions.

During Trump’s appeal, which he has pledged to file, the Supreme
Court’s recent ruling in _Trump v. United States_
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_that sitting presidents have immunity for “official acts” –
will guide the courts of appeals. In turn, the appellate court’s
decision about how _Trump v. U.S._ applies to _New York v. Trump_ will
serve as precedent in future cases.

Even though Trump’s hush money payments to adult film actress Stormy
Daniels (via attorney Michael Cohen) occurred before the 2016
presidential election, Trump objected to the admission of certain
evidence on the grounds of presidential immunity at his trial in
April-May 2024. In July, the Supreme Court decided _Trump v. U.S._,
which set the parameters for the analysis of matters of presidential
immunity.

In the course of Trump’s appeal in _New York v. Trump_, the
appellate courts will decide whether Merchan erred in admitting
evidence under the presidential immunity principles set forth in
_Trump v. U.S._

If the appeals court finds that some or all of the disputed evidence
was wrongfully admitted at trial, it will then determine whether, in
light of all the other evidence presented, Trump’s convictions
should be overturned.

On July 1, 2024, the six-member right-wing supermajority of the
Supreme Court ruled in _Trump v. United States_
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sitting presidents have absolute immunity from criminal prosecution
for their core official acts, and presumptive immunity for all other
official acts. That case stemmed from Trump’s efforts to overturn
the results of the 2020 election.

A president has presumptive immunity for acts committed in “the
outer perimeter of his official responsibility,” Chief Justice John
Roberts wrote for the majority. The burden is on the prosecutor to
rebut the presumption of immunity by proving that prosecuting those
acts would pose no “dangers of intrusion on the authority and
functions of the Executive Branch.”

Roberts added, “The President enjoys no immunity for his unofficial
acts, and not everything the President does is official. The President
is not above the law.” But the court ruled that in a prosecution for
unofficial acts, evidence of official acts cannot be considered by the
jury.

The high court established the rules for presidential immunity. But
former special counsel Jack Smith dismissed the charges in _Trump v.
U.S. _after Trump was elected president in November 2024 because of a
Department of Justice rule that sitting presidents cannot be
criminally prosecuted.

Nevertheless, the Supreme Court’s presidential immunity analysis
will guide judges in other cases, including Trump’s appeal of his
hush money convictions in _New York v. Trump. _The appellate courts
will decide whether the trial judge improperly admitted evidence
protected by presidential immunity and if so, whether Trump’s
convictions should be reversed.

In _New York v. Trump, _the former president was charged in state
court with repeatedly and fraudulently falsifying New York business
records to conceal criminal conduct that hid damaging information from
the voting public during the 2016 presidential election.

Trump moved to preclude certain evidence on the grounds of
presidential immunity. Merchan denied Trump’s motion and admitted
the evidence.

The trial was conducted from April 15 through May 29, 2024, and ended
in a unanimous jury verdict of guilty on all 34 counts.

Trump’s lawyers made a motion to dismiss the indictment and vacate
the jury’s verdict on the grounds of presidential immunity. Merchan
denied
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motion on December 16, 2024.

“The criminal charges here stem from the private acts of the
Defendant made prior to taking the Office of the President — leaving
only the question as to whether the _evidence_ used to support the
instant charges meet the official acts criteria as set forth by the
_Trump_ Court,” Merchan wrote.

Trump argued that certain “official-acts evidence” was improperly
admitted, including: private communications with Hope Hicks, White
House communications director; Office of Government Ethics Form 278e;
observations of Madeleine Westerhout, director of Oval Office
Operations, about Trump’s “preferences and practices” in the
Oval Office; testimony of Trump’s former attorney Michael Cohen
about his communications with Trump and others about the presidential
pardon power, testimony about a “pressure campaign,” and testimony
about Cohen’s conversations with David Pecker about a related
Federal Election Commission inquiry; and “five sets of posts from
2018 on President Trump’s official White House Twitter account.”

Merchan found that Trump failed to timely object to some of this
evidence. But even if he had filed proper objections, Merchan wrote,
the testimony flagged by Trump reflected unofficial conduct, so no
level of immunity applies.

In the event that some of the testimony related to conduct within the
outer perimeter of executive duties, Merchan concluded, the
prosecution had rebutted the presumption of immunity.

Merchan came to the same conclusion about the government ethics form
and Trump’s tweets, quoting Roberts in _Trump v. U.S._, who wrote
that “not everything the President does is official.”

Finally, Merchan held that even if any evidence of official
presidential acts was improperly admitted at trial, the introduction
of the disputed evidence constituted “harmless error,” so he
declined to dismiss the case against Trump. “The error is deemed
harmless if there is overwhelming evidence of a defendant’s guilt
and there is no significant probability that the error affected the
outcome of the trial,” Merchan noted
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After examining all of the evidence presented at trial, Merchan
concluded that any error in the admission of evidence “was harmless
in light of the overwhelming evidence of guilt.”

Trump’s promised appeal is expected to wend its way through the New
York state appellate courts. His lawyers could file a petition for
_writ of certiorari_ in the U.S. Supreme Court, where they will likely
find a sympathetic conservative majority. Four of the right-wing
members of the court would have stopped Merchan from sentencing Trump.
Roberts and Amy Coney Barrett may well rule in Trump’s favor on
appeal.

Meanwhile, even though Justice Merchan didn’t impose a custodial,
financial or supervisory penalty, Trump will soon be the first U.S.
president to enter the White House with a felony conviction on his
record.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law,
dean of the People’s Academy of International Law and past president
of the National Lawyers Guild. She sits on the national advisory
boards of Veterans For Peace and Assange Defense, and is the U.S.
representative to the continental advisory council of the Association
of American Jurists. Her books include _Drones and Targeted Killing:
Legal, Moral and Geopolitical Issues_.

* Donald Trump; New York v. Trump; New York Supreme Court Justice
Juan Merchan; Presidential Immunity;
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