'Harmless error': Inside the legal doctrine that all but guarantees Trump’s hush money sentencing

07 July 2024

Former President Donald Trump can’t outrun his Sept. 18 “hush money” trial sentencing despite the Supreme Court’s stunning immunity ruling last week, former New York judges and prosecutors told Business Insider.

The Supreme Court last Monday ruled 6-3 that Trump is “immune from prosecution for official acts taken while in office, but not for private conduct,” the Washington Post reports. That decision put Trump’s pending criminal sentencing in peril after a Manhattan jury last month unanimously convicted the former president on 34 felony counts related to falsifying documents.

As Business Insider reports, “[E]ven if Trump's trial judge, New York Supreme Court Justice Juan Merchan, finds that presidential immunity retroactively invalidates some evidence used at trial, he'll likely also find that this amounts to ‘harmless error.’ No harm, no foul — meaning that even if you removed the challenged evidence, there would still be overwhelming proof of Trump's guilt.”

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John Moscow, a former Manhattan financial crimes prosecutor, told Business Insider he believes “the judge will find that [Trump] would have been convicted regardless.”

Moscow explained “harmless error” as a doctrine that “means you're saying that removing this evidence from the trial wouldn't change the verdict.”

The Hill reports Trump’s lawyer aren’t claiming the former president is immune “from the actual 34 counts of falsifying business records he faced," but instead have “zeroed in on trial evidence used to prove those counts.”

“The former president contends that the jury’s verdict must be tossed out because some evidence shown to jurors is now inadmissible under the Supreme Court’s new test,” The Hill reports.

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As Business Insider notes, “Trump's lawyers are about to file what's known as a 330.30 motion to set aside the verdict,” which is “based on a state statute that tells New York criminal trial judges that they must toss out a verdict if the defense proves that something happened in the trial that was so grievously wrong, it would never survive an appeal.”

The Hill reports:

Trump’s team says Manhattan District Attorney Alvin Bragg (D) improperly brought in an array of official acts as evidence[.]

...

Attorneys Todd Blanche and Emil Bove wrote to the judge that according to the Supreme Court’s decision, “this official-acts evidence should never have been put before the jury.”

According to Business Insider, “Trump hopes to use this section of New York law to overturn his” conviction. That legal argument rests on the claim that on at least four occasions, “the judge improperly let Manhattan prosecutors show official-act evidence to the jury.”

Those four instances were:

1. Trump’s 2017-2018 phone logs
2. Trump’s 2018 tweets
3. Trump’s Oval Office conversations with former aide Hope Hicks
4. Trump’s signing of a 2018 government ethics form

Moscow told Business Insider Trump’s phone calls don’t necessarily connote official acts. But, he said, even if those logs were removed from evidence, “the conversation is what was important, and the fact of a conversation was confirmed by the person on the other end.”

"So if you knock out the phone logs, that doesn't warrant a new trial,” Moscow said.

Experts similarly dismissed the defense’s claim that jurors “should never have seen” Trump’s 2018 tweets from the former president’s personal Twitter account.

As Business Insider reports, “In the tweets, Trump described his payments to Cohen as hush-money reimbursement, contrary to his business records, in which the payments were falsely — and 34 times — called ‘legal fees.’”

"If tweets or 'truths' are all official acts, then the libel and defamation laws all go," Moscow said. ”Privacy laws all go. He can say whatever he wants whenever he wants to.”

Diana Florence, a former financial crimes prosecutor, suggested Trump’s conversations with Hicks might be considered official acts because she worked in his administration. But “whether it was properly or improperly shared with the jury, the Hicks conversation is more corroborative than substantive, and the verdict would survive without it,” Business Insider reports.

According to Business Insider, the final instance expected to be used by the defense involves Trump’s signing of a 2018 government ethics form that prosecutors showed “to jurors because it includes Trump's claim that ‘Mr. Trump fully reimbursed Mr. Cohen in 2017.'"

“By calling it reimbursement, Trump contradicts his business records, which disguised the reimbursement as legal fees,” Business Insider reports.

Florence likewise described the 2018 government ethics form as “only more corroboration" of Trump's crimes.

“If he was being prosecuted for that form — for that being a false filing — then maybe, maybe, in the new world we're living in then that could cause the verdict to be overturned,” Florence said.

Absent that, the experts say there's a very good chance Trump's sentence will be adjudicated later this year.

Read the full report at Business Insider (subscription required).

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