Trump wants his hush-money verdict set aside. But a legal doctrine called “harmless error” is more powerful than his immunity, experts believe.
“No harm, no foul” isn’t just for streetball. It could help former President Donald Trump’s hush-money conviction survive the US Supreme Court immunity opinion.
Thanks to a legal doctrine called “harmless error”, Trump’s September 18 sentencing is virtually guaranteed to proceed as planned, former New York judges and prosecutors predicted in conversations with Business Insider.
And no amount of jumping up and down and screaming “SCOTUS” can stop it, they said.
That’s because even 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.
“Saying it’s harmless means you’re saying that removing this evidence from the trial wouldn’t change the verdict”, explained John Moscow, a former Manhattan financial crimes prosecutor.
“And yes, I believe the judge will find that he would have been convicted regardless”, added Mocow, now senior counsel at Lewis Baach Kaufmann Middlemiss in New York.
“And yes, I believe that the judge will find that this was harmless.”What are Trump’s lawyers trying to do?
Trump’s lawyers are about to file what’s known as a 330.30 motion to set aside the verdict. Their deadline for filing is Wednesday.
It’s a pre-sentencing motion. And it’s 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.And here’s where SCOTUS comes in
Trump’s lawyers have already given Merchan and prosecutors the broad outlines of what they believe those grievous 330.30 grounds for an appellate reversal are.
They’re the same grounds they raised pre-trial in March, in arguing without success that the trial should be delayed until SCOTUS addressed presidential immunity.
Monday’s immunity opinion protects former presidents from having to defend themselves against evidence involving their “official acts.”
Trump’s lawyers now say there were at least four times that the judge improperly let Manhattan prosecutors show official-act evidence to the jury.
All four instances involved evidence from 2017 and early 2018. (It was just 11 days before the 2016 election when then-Trump attorney Michael Cohen fronted $130,000 in hush money to porn star Stormy Daniels. But Trump was in the White House when he falsified Trump Organization records throughout 2017 to hide paying Cohen back.)Trump says his 2017-18 phone logs were official-act evidence
The defense is poised to argue that the hush-money jury should never have seen phone logs showing when and for how long Cohen’s phone connected with phones used by Trump.
But the logs are neither “acts” nor vital to a verdict, former prosecutors said.
“A phone record is not the president doing something”, said Diana Florence, another former financial crimes prosecutor now in private practice.
“The logs only show that this instrument connected to that instrument”, Moscow agreed.
