Judge rules on whether Trump can claim presidential immunity in hush money case he wants thrown out

Donald Trump does not have presidential immunity in his New York hush money case.    

Judge Juan Merchan wrote Monday that the conviction related to his payment to porn star Stormy Daniels should not be dismissed. 

It comes as Trump seeks to throw out the case after the Supreme Court’s presidential immunity decision this summer. 

But the judge ruled the evidence presented in the case earlier this year was related ‘entirely to unofficial conduct’ and therefore were not official actions as president.

‘This Court concludes that if error occurred regarding the introduction of the challenged evidence, such error was harmless in light of the overwhelming evidence of guilt,’ Merchan wrote. 

‘Even if this Court did find that the disputed evidence constitutes official acts under the auspices of the Trump decision, which it does not, Defendant’s motion is still denied as introduction of the disputed evidence constitutes harmless error and no mode of proceedings error has taken place.’ 

Prosecutors asked a New York judge last week to spare Trump prison time for his hush-money conviction in their new filing. It is an effort to prevent the case from being thrown out altogether.

Merchan did not rule Monday on that motion. 

Instead, his 41-page decision focused on the question of presidential immunity. 

In documents made public last wee, prosecutors offer a range of alternatives to imprisoning a president in order to keep his conviction on the books. 

They even suggest using a procedure more commonly invoked when a defendant dies.

A jury in May found Trump guilty of 34 counts of falsifying business records to hide a $130,000 payment to Daniels to keep her quiet ahead of the 2016 presidential election about their extramarital affairs years prior.  

Lawyers for Trump argue the case should now be thrown out so it does not get in the way of his ability to govern once he takes his oath of office on January 20, 2025.

They also felt the case should be thrown out due to the Supreme Court’s July ruling claiming the President of the United States has immunity from prosecution for official acts in office. 

The case centered on Special Counsel Jack Smith’s prosecution of Trump for allegedly masterminding efforts to overthrow the 2020 election while in office, including on January 6 in the Capitol riot. 

The former and future president’s team argued that Trump, and any president, must have absolute immunity from prosecution over actions taken while in office or it could impair important decision-making. 

‘The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law,’ the justices led by Chief Justice John Roberts wrote in the majority.

In response to Trump’s latest request for dismissal, prosecutors say their concerns relate to the possibility that Trump could be imprisoned.

‘Here, however, because defendant has no prior criminal convictions and was convicted of Class E felonies, this court is not required to impose a sentence of incarceration at all, and could even impose an unconditional discharge.

‘The court could therefore conclude that presidential immunity, while not requiring dismissal, nonetheless would require a non-incarceratory sentence in these circumstances.’ 

Another idea would be to close the case but effectively add an asterisk, explaining that Trump was convicted but that he was never sentenced and his appeal went unresolved because of presidential immunity. 

‘This remedy would prevent defendant from being burdened during his presidency by an ongoing criminal proceeding,’ prosecutors wrote, without discarding the ‘fact that defendant was indicted and found guilty.’

Trump wants the case to be thrown out altogether. 

‘This lawless case should have never been brought, and the Constitution demands that it be immediately dismissed,’ said his spokesman Steven Cheung. 

Sentencing was originally set for November. 

But Judge Juan Merchan halted proceedings in light of Trump’s Nov. 5 election win so that the defense and prosecution lawyers could make submissions about how to proceed. 

Merchan has yet to set to a date for the next step.

In the meantime, Trump has seen much of his legal problems evaporate.

Special Counsel Jack Smith dropped his two federal cases, related to government documents recovered from Trump’s Mar-a-Lago home and the Jan. 6 attack on the U.S. Capitol, after the election.

Trump has denied any wrongdoing in all the cases against him.