Bragg’s Summer Home Run to Protect Conviction Will be Decided by Judge Two Days Before Scheduled Sentencing: Tracking the New York Case

A ruling by Judge Juan Merchan on Donald Trump’s motion to set aside his New York hush-money conviction is expected on September 16th, 2024, and is the hinge upon which Trump is seeking to escape accountability for his crimes, with new motions to either postpone sentencing (scheduled for Sept.18) until after the election, or remove the New York case to Federal court (which has been denied twice in the past week).

The Sept. 16^th decision is key because District Attorney Bragg’s memo of law as to why the conviction should be upheld, despite the Supreme Court ruling on presidential immunity, is so powerful and compelling that it is obvious Judge Merchan will uphold the conviction.

The Bragg memo is a detailed refutation of Trump’s effort to set aside the conviction as a result of the Supreme Court immunity decision. In fact, the memo is a virtual line-by-line roadmap of how to sustain an unofficial act prosecution of a President and the manner in which certain official act evidence can be utilized where a line can be drawn showing the evidence admissible.

As a matter of fact, it is such an insightful and brilliant analysis of circumstances around which a former President could be indicted, tried, and convicted for various crimes that it’s worth writing about, and that’s what this article is about.

I’ll start with the general timeline of the case, however, since it’s needed to keep the endless flood of litigation clear and in context before I get to Bragg’s memo.

On March 30, 2023 Bragg indicted Trump on 34 counts of felony fraud. On May 4^th, 2023, Trump sought to remove the case to Federal court in New York. After a hearing, the Federal court ordered the case back to New York on July 19^th, 2023. After extensive pretrial motions, the trial began on April 15^th, 2024 and Trump was convicted on May 30^th, 2024. On July 1^st, the Supreme Court issued its immunity ruling.

On July 11^th, Trump moved before Judge Merchan to set aside his conviction based on the Supreme Court ruling, and Bragg responded with his memo of law on July 24^th. On August 6^th, Judge Merchan revised his schedule for deciding on the motion to set aside the conviction from September 6^th to September 16^th, but there was no change in the sentencing scheduled for September 18^th.

On August 14^th, Trump requested a postponement of sentencing until after the election, and Bragg responded two days later deferring to Judge Merchan on delaying sentencing. On August 29^th, Trump moved to transfer the case to Federal court, before the same Judge who had rejected Federal involvement a year ago and sent the case back to New York. His motion to transfer the case to Federal court has been denied twice just since August 29^th.

 Merchan is expected to rule on the sentencing delay before the September 16^th decision on setting aside the conviction. Although Trump’s effort to delay sentencing until after the election is a blatant political move, Bragg’s letter on this question acknowledged some complexities associated with the sentencing being just two days after the ruling on the conviction, which could be immediately appealable.

Appellate litigation has its own rules and include the discretion of an appellate court to stay enforcement of criminal judgments, possibly including even staying a sentencing. Judge Merchan might delay the sentencing for a few days, but it seems inevitable even the sentencing will become ensnarled in litigation soon and it’s anybody’s guess how this plays out before the election.

Quoting Bragg’s memo, it states that “the principal holding of Trump v. United States concerns the scope of immunity from criminal prosecution for  “official acts taken during his Presidency.” 144 S.C. 2346-47.

That holding has no bearing here because, as the defendant does not dispute, the charges in this case all involve purely personal conduct, rather than official presidential acts.” Bragg, p.12, supra.

Bragg quotes the Federal judge in the case that remanded the prosecution back to New York, who concluded the conduct charged “was purely a personal item of the President- a cover-up of an embarrassing event. Hush money paid to an adult film star is not related to a President’s official acts. It does not reflect in any way the color of the President’s official duties.” Trump, 683 F. Supp 3d, 345.

The basis of Trump’s objections that necessitate setting aside the conviction was that evidence of official Presidential acts was entered into evidence in the New York case, in violation of another part of the Supreme Court immunity ruling, in which the Supreme Court “limited the use of evidence of official conduct for which the President is immune, “even on charges that purport to be based only on his unofficial conduct.” Bragg, p.7. Trump objected to six categories of evidence on this basis that had been admitted at trial and claimed these admissions of evidence tainted the verdict.

Bragg pointed out that Trump had objected to only two of these categories of evidence at the trial itself, meaning that he had failed to preserve the right of appeal on the evidence he failed to object to. Bragg discusses at length Trump’s failures to object on immunity grounds to various evidentiary issues, both before and at trial, but addresses all the objections nonetheless just in case the appellate courts retain Trump’s objections for review.

Trump objected to the introduction of four of his Tweets about Michael Cohen. An example of one of them is taken from a Politico article at the time.

Prosecutor Susan Hoffinger asked Michael Cohen about a series of tweets  sent by Trump in April 2018 that he believed were designed to cryptically communicate with him after the FBI raid on his home, office and bank.

“Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble,” Trump wrote in one tweet.

Cohen testified he thought the tweet was a message to him to stay loyal to Trump. Bragg’s argument on admission of this Tweet, and on the other ones, is that the subject matter of the tweet consists solely of unofficial acts for which there is no immunity. Bragg argued further that the courts have long recognized that Presidents can communicate in their unofficial capacity as well as their official one.

Trump argued his Tweets were official Presidential communications, but Bragg countered that the Supreme Court had permitted official act evidence if it was a matter of public record. The tweets were sent out to millions of people and were public records that were admissible.

Trump objected to the admission of testimony by Hope Hicks since she had been the White House Director of Communications. But Bragg argued that much of the admitted testimony came from the time when she was the campaign press secretary in 2016 and was about Trump’s reactions to the Hollywood Access tape, none of which Trump had objected to at trial. Trump objected to admission of communications while Hicks was in the White House, but Bragg argued that the Supreme Court had acknowledged that not all of Trump’s discussions with Vice-President Pence would qualify as official conduct (a key issue in the Jack Smith new indictment) and therefore not all of Hope Hicks’ communications were immune from introduction into evidence. There was also no bar to Hicks’ testimony about other individuals like Michael Cohen.

Trump objected to the introduction of a text sent by Michael Cohen to a newspaper reporter regarding his testimony about FEC (Federal Election Commission) investigations into his hush-money payments to Stormy Daniels, in which he claimed Trump had approved of his responses to the FEC, as well as other testimony by Cohen. But once again, Bragg disposes of Trump’s objections because Trump’s conduct here involved no official act. The FEC was an independent Federal civil enforcement agency not under the direct control of the President and the Attorney General, unlike what the Supreme Court said was out of bounds related to conversations with the Justice Department and immune. Cohen was a private attorney, the subject matter was unofficial act hush-money payments, etc. The President was not exercising any official duty by purportedly secretly interfering with an FEC investigation.

Bragg proceeds with the central thesis of the memo:

 “For all the pages the defendants devotes to his current motion, the evidence that he claims is affected by the Supreme Court’s ruling constitutes only a sliver of the mountains of testimony and documentary proof that the jury considered in finding him guilty of all 34 felony charges beyond a reasonable doubt.” p.1

“The trial record proved the defendant set the fraudulent repayment scheme in motion, and that the creation of business records to carry out that scheme was a predictable consequence of his decision.” p.43

Bragg argued that Trump acted with intent to defraud along with an intent to commit or conceal the commission of another crime, and that the overwhelming evidence intent of false business records was to obscure repayment to Cohen of the Stormy Daniels payoff:

 “And the evidence of the Trump Tower conspiracy and the steps taken to effectuate it—established by testimony from David Pecker, Keith Davidson, Stormy Daniels, Michael Cohen, and Gary Farro, as well as by the dozens of emails, text messages, phone calls, recorded conversations, business documents, and other records that corroborate that testimony—prove that hiding information and concealing the underlying conspiracy was the entire point of the scheme.” See, e.g., Tr. 1019:4-1026:4, 1091:21-1092:20, 1133:8-13, 1146 p.45 Bragg memo.

“Of course, there was also abundant and damning evidence-much of it in defendant’s own words-proving beyond any doubt that he was motivated to conceal the sexual encounter with Stormy Daniels because he was concerned that its public disclosure would damage his standing with female voters and harm his chances for election, particularly after the release of the Access Hollywood Tape.” See, e.g., Tr. 1180:3-11 85 :7 (Pecker); Tr. 1755 p.41/

None of the evidence regarding defendant’s intent to defraud relies at all on the documents and testimony that Trump claims was erroneously admitted. The evidence that established the enhanced penalty (a felony) for the business record frauds, by committing or attempting to conceal commission, of other crimes by unlawful means, such as FECA (The Federal Employees’ Compensation Act) violations, falsification of other business records, and violations of tax laws, had nothing to do with official acts of the President.

Bragg also argued that the facts that Trump made or caused false entries in the business records of his Trump enterprise was overwhelmingly established by the trial record without reference to any of the evidence defendant objected to on immunity grounds. Those included invoices, general ledger entries, and checks with check stubs, the fact that there was no retainer agreement and Cohen was not paid for services rendered, and that the $420,000 was a reimbursement, was corroborated by testimony from Cohen, from Pecker and Davidson and concessions by defendant in litigation with Stormy Daniels.

Given all of this, I believe Judge Merchan’s upholding the conviction is a slam dunk, but I’m sure the sentencing will become ensnarled soon in legal wrangling.