The judge in Donald Trump’s criminal hush money case in New York is set to decide Tuesday whether to throw out Trump’s conviction based on the U.S. Supreme Court’s recent decision on presidential immunity.
A jury convicted Trump in May of all 34 felony counts of falsifying business records related to a hush money payment to adult film actress Stormy Daniel to silence allegations about a 2006 sexual encounter with Trump to boost his electoral prospects in the 2016 presidential election.
If Judge Juan Merchan upholds the conviction, sentencing in the case is scheduled for Nov. 26, less than two months ahead of Trump’s inauguration.
While the $130,000 payment preceded Trump’s ascension to the presidency, Trump has claimed that prosecutors filled “glaring holes in their case” with evidence that related to official acts he subsequently performed in office — which the Supreme Court ruled are off limits in its July ruling on presidential immunity.
Prosecutors have argued that the case centers on “entirely personal” conduct with “no relationship whatsoever to any official duty of the presidency.”
“[T]he 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,” prosecutors said.
Defense attorneys have argued certain evidence — including Trump’s conversations with then-White House communications director Hope Hicks and Trump’s social media posts as president — tainted the jury’s understanding of the case.
In this July 31, 2024, file photo, Republican presidential candidate former President Donald Trump waits on stage to speak at a campaign rally, in Harrisburg, Pa.
Alex Brandon/AP, FILE
In one example cited by prosecutors, Hicks testified that Trump said he preferred the story about his hush money payment come out after the election, suggesting he was aware the allegations by Daniels could have impacted the race. In his closing statement, a prosecutor described the testimony as the final “nail in Mr. Trump’s coffin.”
In response, prosecutors have argued that the testimony from Hicks “related solely to unofficial conduct” and would not be considered immune.
Trump has asked that the verdict be overturned or the case be thrown out entirely. If Judge Merchan tosses the conviction, he could order a new trial — which would be delayed for at least four years until Trump leaves office — or dismiss the indictment altogether.
Merchan has already delayed the sentencing twice — first following the immunity decision in July, and again in September to “to avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election,” the judge said.
Following Trump’s election victory, he is set to be inaugurated less than two months from his sentencing date, which limits Merchan’s options for punishing the president-elect, according to experts.
Trump’s conviction carries a penalty of up to four years in prison, though first-time offenders normally receive lesser sentences.
In the meantime, special counsel Jack Smith is expected to drop both of Trump’s federal criminal cases — related to his efforts to overturn the 2020 election and retain classified documents after leaving the White House — based on a longstanding Department of Justice policy prohibiting the prosecution of sitting presidents. Trump’s criminal election interference case in Georgia has also been mired in delays, leaving his New York conviction as the last of his criminal hurdles before he regains the presidency.
In his September order delaying the sentencing until this month, Judge Merchan described the case as “one that stands alone, in a unique place in this Nation’s history”