People v. Trump

People v Trump

2024 NY Slip Op 34410(U)

December 16, 2024

Supreme Court, New York County

Docket Number: Indictment No. 71543-23

Judge: Juan M. Merchan

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 59

DECISION and ORDER

THE PEOPLE OF THE STATE OF NEW YORK

Defendant's Motion to

- aga111st - Dismiss the Indictment and

Vacate the J ury's Verdict

DO ALD J. TRUMP, Pursuant to C.P.L.

D efendant. § 330.30(1)

Indictment o. 71543-23

JUAN M. MERCI IAN, A.J.S.C.:

P ART I : B ACKGROUND AND PROCED URAL HISTORY

Trial commenced on the instant matter on April 15, 2024, and continued through May 29,

2024, when the jury received the case to begin deliberations. The following day, on May 30, 2024,

the jury returned a verdict of guilty on 34 counts of Falsifying Business Records in the First Degree.

That same day, this Court set a deadline of June 13, 2024, for the filing of post-trial motions and

adjourned to July 11, 2024, for the imposition of sentence. T he June 13, 2024, deadline passed

without Defendant filing motions.

On July 1, 2024, the Supreme Court of the United States, rendered a landmark decision in

Trump v. United States, 603 US 593 [2024]. Defendant filed a pre-motion letter dated that same day

seeking leave of this Court to file the instant motion pursuant to Criminal Procedure Law ("CPL")

§ 330.30(1 ). Defendant argued in his letter that the jury's verdict must be set aside pursuant to Tmmp

because "DANY should not have been permitted to offer evidence at trial of President Trump's

official acts." Defendant's Letter dated July 1, 2024.

Defendant first broached the topic of Presidential immunity on December 22, 2022, in a

motion for summaty judgment he filed in an uruelated case brought against him for defamation.

Carroll v. Trump, 680 F.Supp.3d 491, 498 [SD NY 2023]. In that motion, Defendant argued that the

suit should be dismissed because a "President is 'entitled to absolute immunity from damages liability

predicated on his official acts,"' and that the alleged defamatory statements introduced at that trial

fell within the outer perimeter of his official duties as President. Id. at ECF No. 109 citing Nixon v.

Fitzgerald, 457 US 73 l p 982].

[* 1]

Defendant was arraigned on the instant matter several months later, on April 4, 2023.

Approximately one month later, on May 4, 2023, Defendant filed a Notice of Removal in the

Southern District of New York. New York v. Trump, 683 F.Supp.3d 334 [SD NY 2023]. In the Notice

of Removal, he argued that "this case involves important federal questions" because the indictment

contains charges related to conduct that Defendant "committed while he was President of the United

States that was within 'the color of his office."' Id. at ECF o. 1. The motion was denied by Judge

Hellerstein on July 19, 2023, who found that the Defendant "failed to show that the conduct charged

by the Indictment is for or relating to any act performed by or for the President under color of the

official acts of a President." Id. at 351 .

On June 13, 2023, Defendant was indicted in the United States District Court for the

Southern District of Florida on charges related to bis alleged handling of classified documents. United

States ofAmerica v. Trump, el al., S.D. Fla, 23 CR 80101, (AMC) Q1ereinafter the "Florida Documents

Mattel') . On August 3, 2023, the Defendant was indicted in Washington, D.C. for allegedly

interfering with the 2020 Presidential election. United States v. Trump, US Dist Ct, D.D.C 23 CR 257,

(fSC) Q1ereinafter "January 6th Mattel') .

On September 29, 2023, Defendant filed an omnibus motion in the instant matter in which

he did not raise any issues with respect to Presidential immunity or the Supremacy Clause. See

Defendant's Omnibus Motion general(y. Five days later, on October 5, 2023, Defendant moved to

dismiss the January 6th Matter on the grounds of Presidential immunity. Ja11J1ary 6 Matter at ECF No.

74. On February 22, 2024, Defendant moved to dismiss the criminal indictment in the Florida

Documents Matter on the grounds of Presidential in1munity, arguing that the "charges stem directly

from official acts by President Trump while in office." See Plorida Documents Matter at ECF o. 324.

That same day, Defendant filed motions in limine in the instant matter wherein he sought, among

other things, to: preclude the People from arguing that "President Trump sought to improperly

influence the 2016 election;" preclude the testimony of Dino Sajudin, Karen McDougal and

Stephanie Clifford; preclude the People "from suborning Michael Cohen's perjury;" and preclude

the People from "introducing the neatly 100 statements they seek to attribute to President Trump."

Defendant's Motions in limine at pg. 40. Notably, Defendant did not raise the defense of Presidential

immunity even though he had already done so in the Notice of Removal he filed with the Southern

District of cw York, the Flo,ida DocNments Matter and the January 6th Matter.' In fact, Defendant again

1 Counsel in the instant matter also represented Defendant in the Florida Documents Matter and the January 6

th

Matter, both of which have been dismissed.

2

[* 2]

failed to argue Presidential immunity in his Reply to the People's motions in /imine which he filed a

week later, on f-ebruary 29, 2024.

On March 7, 2024, 18 days before the then scheduled trial date of March 25, 2024, Defendant

for the first time in the instant matter moved to preclude various pieces of evidence on the grounds

of Presidential immunity. By Decision and Order dated April 3, 2024, this Court denied the motion

as untimely pursuant to CPL § 255.20(3), holding that Defendant "had myriad opportunities to raise

the claim of Presidential immunity well before March 7, 2024" but failed to do so. See this Court's

Decision and Order dated 4/3/24 at pgs. 5-6.2

As noted above, Defendant filed the instant CPL§ 330.30(1) motion after the Supreme Court

rendered its July 1, 2024, decision but after this Court's June 13, 2024, deadline for the filing of post-

verdict motions. Nonetheless, this Court granted leave, set a briefing schedule and adjourned

sentencing in order to carefully analyze the Defendant's arguments in the context of Trump and to

determine whether that Decision has any bearing on the case at bar.3

The follO\ving constitutes the Decision and Order of this Court.

PART II: TRUMP V. UNITED S TATES, 603 U S 593 [2024]

On August 1, 2023, a federal grand jury indicted Donald J. Trump for conduct that allegedly

occurred during his Presidency following the 2020 Presidential election. Trump at 602. Trump moved

to dismiss the indictment on the grounds of Presidential immunity. Id. at 603. The Federal District

Court for the D.C. Circuit denied the motion. Id. at 604. Defendant appealed and the D.C. Circuit

Court of Appeals affirmed. Id. The Supreme Court of the United States granted certiorari "to answer

the following question: '[w]hether and if so to what extent does a former President enjoy presidential

immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in

office."' Id. at 605. The Supreme Court identified Trump as "the first criminal prosecution in our

ation's history of a former President for actions taken during his Presidency"4 and then elaborated

on the issue before it: "\Y/e are called upon to consider whether and under what circumstances such

a prosecution may proceed." Id.

2 In a letter motion filed with this Court on April 16, 2024, Defendant again raised the argument of evidence

preclusion premised on Presidential immunity. The motion incorporated Defendant's March 7, 2024, Presidential

immunity motion.

3

During the pendency of the instant motion, Defendant filed a separate motion to dismiss pursuant to CPL§§

210.20(1)(h) and 210.40(1). That motion has not yet been decided.

4

As noted in t he Procedural History, supra, the instant matter was arraigned on April 4, 2023, months before

Defendant was indicted in the January 6 th Matter.

3

[* 3]

The Supreme Court concluded that, "the nature of Presidential power requires that a former

President have some immunity from criminal prosecution for official acts during his tenure in office.

At least with respect to the P resident's exercise of his core constitutional powers, this immunity must

be absolute." Id. at 606. The Tr11mp Court identified some of the duties within his core constitutional

powers as commanding the Armed Forces, granting reprieves and pardons, appointing public

ministers and foreign relations such as "making treaties, appointing ambassadors, recognizing

foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence

gathering,[ . .. ] terrorism, trade and imntigration." Id. at 607. As the President's duties within his core

constitutional powers are of "unrivaled gravity and breadth," a President must be permitted to make

decisions of the utmost import without fear of prosecution. Id. Thus, "Congress cannot act on, and

courts cannot examine, the President's actions on subjects within his 'conclusive and preclusive'

constitutional authority." Id. at 609.

The Trump Court however, recognized that "not all of the President's official acts fall within

his conclusive and preclusive authority." Id. The President sometimes acts in a "zone of twilight''

and the reasons that justify absolute immunity do not apply to those acts. Id. Before analyzing and

deciding which acts fall within this "zone of twilight," where the President's authority is shared with

Congress, the Trump Court "recognize(d] that only a limited number of our prior decisions guide

determination of the President's immunity in this context. That is because proceedings directly

involving a President have been uncommon in our Nation and 'decisions of the Court in this area'

have accordingly 'been rare' and 'episodic."' Id. at 610 citing Dames & Moore v. Regan, 453 US 654

661 [1981]. Lacking precedent on point, the Tmmp Court, "[t]o resolve the matter llooked) primarily

to the Framers' design of the Presidency within the separation of powers, [its] precedent on

Presidential immunity in the civil context, and [... ) criminal cases where a President resisted

prosecutorial demands for documents." Id. otably absent of course, was any precedent where a

President was criminally charged for actions taken while in office - the specific issue the T111mp Court

was tasked with resolving. Id. at 639 ("No court has ever been faced with the question of a President's

immunity from prosecution. All that our Nation's practice establishes on the subject is silence.")

In its analysis of Presidential immunity in the civil context, the Trump Court cited and relied

in large part, upon Fitzgerald, 457 US 731, which held that a President must be absolutely immune

from "damages liability for acts within the 'outer perimeter' of his official duties." Fitzgerald at 756.

Conversely, when considering the issue of document demands upon the President in the criminal

context, the Trump Court relied upon United States v. ixo11, 418 US 683 [1974), which held that when

4

[* 4]

a subpoena is issued to a president to produce certain evidence, there can be no claim of absolute

privilege "given the 'constitutional duty of the Judicial Branch to do justice in criminal

prosecutions.'" Trump at 612. But the Trump Court recognized that "[c]riminally prosecuting a

President for official conduct undoubtedly poses a far greater threat of intrusion on the authority

and functions of the Executive Branch than simply seeking evidence in his possession, as in Burr and

Nixon.'' Id. at 613. The Trump Court was careful to acknowledge that "[t]he President, charged with

enforcing federal criminal laws, is not above them." Id. at 614. "Taking into account these competing

considerations, we conclude that the separation of powers principles explicated in our precedent

necessitate at least a presumptive immunity from criminal prosecution for a President's acts within the

outer perimeter of his official responsibility.'' Id.

The Trump Court instructed that the first step in analyzing whether a former President is

entitled to immunity is to "distinguish his official from unofficial actions" and the first step in doing

that is to assess the "President's authority to take that action." Id. at 617. The Trump Court recognized

however, that "no court has thus far considered how to draw that distinction," and the task "can be

difficult." Id. "Critical threshold issues in this case arc how to differentiate between a President's

official and unofficial actions, and how to do so with respect to the indictment's extensive and

detailed allegation covering a broad range of conduct. We offer guidance on those issues below." Id.

The Trump Court stopped short of resolving, at least completely, the issue before it and notably

refrained from deciding what level of immunity was sufficient for official actions lying within the

oute.r perimeter of a President's authority. "At the current stage of proceedings in this case, however,

we need not and do not decide whether that inununity must be absolute, or instead whether a

presumptive immunity is sufficient.'' lei. at 606. In doing so, the Tmmp Court observed that "[d]cspite

the unprecedented nature of this case, and the very significant constitutional questions that it raises,

the lower courts have rendered their decisions on a highly expedited basis. Because those courts

categorically rejected a,!Y form o f Presidential immunity, they did not analyze tl1e conduct alleged in

the indictment to decide which of it should be categorized as official and which unofficial. either

party has briefed that issue before us." Id. at 616. As a result, the Trump Court remanded the case to

the Federal District Court "to determine in the first instance-with tl1e benefit of briefing we lack-

whether Trump's conduct in th.is area qualifies as official or unofficial.'' Id. at 628.

Notwithstanding the determination to remand as to all other claims, the Tmmp Court did

find Trump "absolutely immune from prosecution for the alleged conducl involving his discussions with

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[* 5]

Justice Department officials."5 Id. at 621 (emphasis added). In attempting to assuage the concerns

expressed by the dissent, ChiefJustice Roberts succinctly clarified the majority's holding. "As for the

dissent, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually

does today - conclude that immunity extends to official discussions between the President and his

Attorney General, and then remand to the lower courts to determine 'in the first instance' whether

and to what extent Trump's remaining alleged conduct is entitled to immunity;" the Trump Court

expressly indicating tl,at its holding is no broader than that. id. at 637.

Because the Tr11mp Court remanded to the Federal District Court, for it to conduct its own

evaluation, the Court provided some guidance for distinguishing "official" from "unofficial" acts

and the context within which that analysis should be performed. As framed by ChiefJustice Roberts,

tl1ere "accordingly 'exists the greatest public interest' in providing tl,e President wit!, 'the maximum

ability to deal fearlessly and impartially wit!,' tl,e duties of his office." Id. at 611 citing Fitzgerald at 752,

guoting Ferri v. Acker7llan, 444 US 193, 203 [1979]. And further, the 'frump Court emphasized tl,e

need to safeguard "tl1e independence and effective functioning of the Executive Branch, and to

enable the President to carry out his constitutional duties witl1out undue caution." Jc/. at 614. But

also, "[t]he President enjoys no immunity fo r his unofficial acts, and not evetything the President

does is official. The President is not above the law." Id. at 642. Thus, while a finding of official

conduct of a President acting within the core constitutional authority imparts absolute immunity,

presumptive immunity from prosecution for an official act in the outer perimeter is overcome if "tl,c

Government can show tl,at applying a criminal prohibition to tl,at act would pose no 'dangers of

intrusion on the authority and functions of the Executive Branch,"' as long as this analysis precludes

inguiry into the President's motives. Id. at 614,618.

That the ruling offered some guidance but ultimately remanded to the District Court for a

more thorough exploration of the relevant facts, speaks to the narrowness of its holding. Trump

involves a unique set of facts, applied to a rarely explored area of the law without precedent directly

on point in our Nation's history. That holding was guided by tl,e bedrock principle, as first set forth

by the Supreme Court in the limited precedent in this area, to wit Fitzgerald and Clinton, that a sitting

5

The Trump Court was able to rule on the applicability of the Presidential immunity doctrine as to charges

related to a President's discussions with his Attorney General because it had a sufficient record on that issue.

However, the case was remanded for the lower court to develop a similarly robust record for possible review of

the other claims on appeal. Remand was necessary in Trump, but the Supreme Court did not hold that lower

courts must conduct such hearings in every instance. Thus, Defendant's claim that the absence of a formal

hearing constitutes a mode of proceedings error is unsupported.

6

[* 6]

President must "make the most sensitive and far-reaching decisions enu-usted to any official under

ow: constitutional system" without undue fear of criminal repercussions. Id. at 611. In extending its

ruling to prohibit the use of official conduct evidence in charges premised upon unofficial conduct,

the Trump Court highlighted its concern that if "official conduct for which the President is immune

[is) scrutinized to help secure bjs conviction, even on charges that purport to be based only on his

unofficial conduct, the 'intended effect' of immunity would be defeated." Id. at 631 citing lo FiltR,erald

at 756.

The Tmmp Court's decision was principally concerned with a President's ability to make

decisions and to make those decisions for the public good. Based upon that concern, which Chief

Justice Roberts refers to in various ways throughout the Tmmp decision, it is readily apparent that

Trump addressed a ve117 specific issue: "When may a former President be prosecuted for official acts

taken during his Presidency?" Id. at 641. That is not the issue currently before this Court. The

criminal charges here stem from the private acts of the Defendant made prior to taking the Office

of the President - leaving only the question as to whether the evidence used to support the instant

charges meet the official acts criteria as set forth by the T nmp Cow:t.

In the case at bar, the trial Court is thoroughly familiar with the legal and factual issues before

it - having presided over eve117 stage of the proceedings. And unlike Tmmp, both parties here have

argued and now briefed the issues exhaustively. The record before this Court is complete and there

is no need for further fact-finding or briefing.

The President of the United States has a duty to the citizenry that is paramount to each and

every decision they make. "There accordingly 'exists the greatest public interest' in providing the

President with the 'maximum ability to deal fearlessly and impartially with' the duties of his office."

Id. at 611. This is to ensure the President can take "bold and unhesitating action" free from fear of

unwarranted reprisal. Id. at 613. But a "President is not above the law." Id. at 642.

It is through this lens and pursuant to the guidance provided by the Supreme Court that this

Court considers Defendant's CPL § 330.30(1) motion.

PART III: ARGUMENTS OF THE PART IES

Defendant moves to dismiss the indictment and vacate tl1e jmy verdict on the grounds tlrnt

the People introduced evidence in the grand ju117 and at trial relating to Defendant's official acts as

President, in violation of the Presidential immunity doctrine as pronounced by the Supreme Court

7

[* 7]

in Trump, and the Supremacy Clause.6 Defendant further argues that the alleged violation is not

subject to harmless error analysis and even if it were, the harm caused is irreparable. Defendant's

Motion at pgs. 20, 41, 43.

Specifically, Defendant argues that certam "official-acts evidence" adm.itted at trial

"concerned actions taken pursuant to 'core' Executive power for which 'absolute' immunity applies."

ld. at pg. 2. Defendant further argues that should this Court find that Defendant is not entitled to

absolute immunity, then "it is equally clear" that he is entitled to presumptive immunity because the

evidence admitted at trial "fit[s] comfortably within" the outer perimeter of the President's authority

and the People have failed to rebut this claim with evidence unrelated to motive as required by the

Trump Court's Decision. Id. at pgs. 27, 29.

Defendant identifies the following evidence as improperly received at trial: private

communications with Hope Hicks ("Ms. Hicks") as White House Communications Director; Office

of Government Ethics Form 278e ("OGE Form 278e"); the observations of Madeleine Westerhout

("Ms. Westerhout"), Director of Oval Office Operations, regarding Defendant's "preferences and

practices" in the Oval Office; the testimony of Michael Cohen ("Mr. Cohen") regarding his

communications with Defendant and others about the presidential pardon power, testimony

regarding a "pressure campaign," and testimony about his conversations with David Pecker ("Mr.

Pecker") about a related Federal Election Commission (hereinafter "FEC") inquiry; and "five sets

of posts from 2018 on President Trump's official White House Twitter account." 7 Id. at pg 14.

The People argue that Defendant failed to preserve the majority of his objections. The

People further argue tl1at should the Court consider the merits of the motion, despite tl1e procedural

bar, the evidence Defendant identifies is wholly unrelated to any official acts as President and thus,

not entitled to any form of immunity whether it be in the grand jury or at trial. In the alternative, the

People argue that the evidence at issue relates only to the outer perimeter of the President's authority

which is entitled only to presumptive immunity, which the government has successfully rebutted

6

Defendant previously raised a Supremacy Clause argument before Judge Hellerstein who, in his July 19, 2023,

decision denying removal, held that Supremacy Clause "immunity requires the defendant to show both that he

was performing 'an act which he was authorized to do by the law of the United States' and that, in performing

that authorized act, 'he did no more than what was necessary and proper for him to do."' New York v. Trump,

683 F.Su pp.3d 334, [SD NY 2023]. Defendant failed to raise this argument in a timely post-judgment motion.

Moreover, the issue of Supremacy was not implicated in Trump and therefore, that decision does not provide

Defendant a new avenue for consideration by this Court of his current Supremacy Clause claim. In any event,

this Court adopts Judge Hellerstein's reasoning and finding.

7

This evidence is discussed in greater detail in the Discussion section below.

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without inquiring into the President's motives in adherence with Trump. Finally, the People argue

that if any of the evidence in dispute was admitted in violation of either immunity prohibition, the

error was harmless in light of the overwhelming evidence of guilt.

PART IV: CPL § 330.30(1)

"After rendition of a verdict of guilty and before sentence," a court may set aside a verdict

if there is a ground in the record that, if raised on appeal, "would require a reversal or modification

of the judgment as a matter of law by an appellate court." CPL § 330.30(1), Defendant's Motion at

pg. 18; People's Response at pg. 8. r\ trial court's inquiry pursuant to § 330.30(1) is generally limited

to a determination of whether the trial evidence was "legally sufficient to establish the defendant's

guilt of an offense of which he was convicted." People v. Carter, 63 NY2d 530, 536 [1984]. A trial

court must determine only "whether there is any valid line of reasoning and permissible inferences

which could lead a rational person to the conclusion reached by the jury on the basis of the evidence

at trial in order to uphold the verdict." People v. Bleak!J, 69 NY2d 490 [1987].

The only claim of error that can serve as a basis to set aside a verdict is one that was properly

preserved for appellate review. People v. Everson, 100 NY2d 609 [2003]. Therefore, in the context of

a CPL§ 330.30(1) motion, an "argument may not be addressed unless it has been properly preserved

for review during the trial." People v. Hines, 97 NY2d 56 [2001] citing to People v. Carter, 63 NY2d 530

[1 984]. As reasoned in People v. Hawkins, 11 NY3d 484 [2008], "[s]ound reasons underlie this

preservation argument. J\s we stated in Grqy, a specific motion brings the claim to the trial court's

attention, alerting all parties, in a timely fashion to any alleged deficiency in the evidence, thereby

advancing both the truth-seeking purpose of the trial and the goal of s'>vift and final determination

o f guilt or nonguilt of the defendant." Hawkins, 11 NY3d at 492, referencing People v. Cray, 86 Y2d

10 l1995]. To "preserve a claim of error in the admission of evidence or a charge to the jury, a

defendant must make his or her position known to the court." Crqy, 86 NY2d at 19.

PART V: DISCUSSION

Section A. Preservation

The threshold issue this Court must consider then, is whether the claims of Presidential

immunity were properly preserved for this Court's review. .

The People argue that Defendant failed to preserve any claim of Presidential immunity as to

the evidence in dispute other than the testimony of Ms. Hicks and OGE Form 278e. People's

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Response at pgs. 6, 9-12. While Defendant claims that he preserved objections as to all evidence in

his pre-trial filings and at trial, he also argues that the Court should overlook any failure to properly

preserve in the "interest of justice" or for "good cause." Defendant's Reply at pg. 2. However, "good

cause" and "interest of justice" arc not legally viable standards for a CPL §330.30(1) review in the

absence of proper preservation. People v. Carter, 63 JY2d 530 [1984] (frial judges have no power to

vacate a conviction on interest of justice grounds), People v. Sudol, 89 AD3d 499 [1st Dept 2011] (Trial

court lacks J\ppellate Division jurisdiction and may only grant a motion where alleged error was

preserved by proper objection at trial .)

Defendant also argues that Tn1mp constitutes an intervening decision and therefore, provides

an exception to the preservation requirement. Defendant's Reply at pgs. 1-2, 6. This Court disagrees.

The New York Court of Appeals in People v. Cabrera emphasized that preservation is crucial except

in the most limited of circumstances as it "gives the parties an essential opportunity to prove relevant

factual and legal issues, thereby ensuring that the record before this Court reflects a full airing of the

points that bear upon an ultimate merits determination." 41 NY3d 35, 43 [20231. It further held that

"preservation is essential where the failure to raise a claim in the court of fust instance means that

th.e appellate record is inadequate to fairly assess the merits, even if governing law was altered ry an

intervening Supreme Court decision." Id. at 45 (emphasis added). The Cabrera court highlighted several

New York Court of Appeals decisions that reiterated the need for preservation despite an intervening

Supreme Court decision. For example, the Court of Appeals held in People v. Marlin, 50 NY2d 1029

[1980], that the intervening Supreme Court decision in Payton 11. New York, 445 US 573 rt 9801, which

changed the law in New York regarding warrantless arrests inside the home, did not excuse a failure

to preserve in the lower courts. The intervening decision in Trump equally does not excuse a failure

by Defendant to adequately presenre his objections to the evidence he now claims was erroneously

admitted.

Defendant also claims that tl1e admission of what he has characterized as official acts

evidence constitutes a "mode of proceedings" error which does not require preservation. Mode of

proceedings errors occupy a very narrow set of claims. People v. Patterson, 39 NY2d 288 [1976]. To

qualify, the error must "go to the essential validity of the process and [be] so fundamental that the

entire trial is irreparably tainted." People v. Kel!J 5 NY3d 116, 119-120 [2005]. "[M]ost errors of

constitutional dimension" must be preserved in the trial court. People v. Hanlry, 20 NY3d 601, 604-

605. Examples of mode of proceedings errors include "changing of the burden of proof, consent to

less than a 12-membcr jw.y in a criminal case, and deviation from State constitutionally mandated

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requirements for an indictment." Grqy, 86 N.Y.2d at 21 -22. And more recently, the Court of Appeals

held that notwithstanding the Supreme Court's decision in Neu1 York Stale llifle & Pistol Assn., Inc. v.

Bruen, 597 US 1 [2022), which "effected a substantial change in Second Amendment jurisprudence,"

and "raises significant questions about whether, in light of BrNen, lack of licensure is an essential

element of New York's criminal possession of a weapon offense and must therefore be charged to

the jury in all cases," it did not qualify as a mode of proceedings error. People v. Dmlid, 41 NY3d 90,

97 [2023]. The alleged errors here do not satisfy the narrow mode of proceedings exception.

As briefly summarized above, Defendant failed to seek a pre-trial ruling on the issue of

Presidential immunity until March 7, 2024, less than three weeks before the scheduled start of trial. 8

Although Defendant argues that the Supreme Court's grant of certiorari on the issue of Presidential

immunity on 1'ebruary 28, 2024, established the timeliness of his filing, that is not the case, as was

thoroughly explained in this Court's Decision of April 3, 2024, which tracked the history of litigation

in the instant matter and paralleled it with Defendant's immwuty-based filings in his federal matters.

That analysis established what can only be explained as Defendant's affirmative decision to not file

a timely immwuty-based ·motion here.

On April 15, 2024, the first day of jury selection, Defendant informed this Court of !us intent

to file another motion for preclusion of evidence on the grounds of Presidential immunity. Tr. 53-

55. The following day, Defendant formally filed a pre-motion letter which incorporated by reference

his March 7, 2024, subnussion.9 In the April 16, 2024, letter, Defendant sought a pre-trial ruling on

the grounds of Presidential immunity as to two specific areas of potential evidence, OGE Form 278e

and certain social media posts later identified as People's E xhibits 407G through 4071. Defendant

also made a sweeping reference to other categories of potential evidence, including "witness

testimony regarding rI)efendant's] official acts during time in Office, such as anticipated testimony

from former White House staff regarding their commmucations with President Trump during his

first term." On April 18, 2024, the People responded by letter arguing the Court should "adhere to

8

The trial date was later adjourned to April 15, 2024, due to a discovery dispute.

9

In his March 7, 2024, submission, Defendant sought an adjournment of the trial until a decision was rendered in

Trump, or in the alternative, preclusion of any official acts evidence based on Presidential immunity. In that

submission, he referenced three Twitter postings by Defendant from 2018, three public statements Defendant

made in 2018 (none of which were introduced at trial}, the U.S. Office of Government Ethics form submitted in

2018, testimony from Ms. Hicks regarding communications she had with Defendant between January 2017 and

March 2018 and again from March 2020 to January 2021, and conversations between Mr. Cohen and Defendant

in February 2017 and 2018 "Twitter posts" testified to by Mr. Cohen in the grand jury. Defendant's March 7,

2024 Motion pgs. 3-4.

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its previous ruling" that Defendant's motion for pre-trial consideration was untimely and that the

Court should instead rule on objections as they are made at trial. On April 19, 2024, this Court

reiterated its previous ruling that the motion for a pre-trial ruling was untimely. ocwithstanding,

this Court made clear that Defendant was not without recourse. To be clear, this Court did not

preclude Defendant from objecting and seeking preclusion of proffered evidence he believed to be

in violation of the Presidential immunity doctrine. Decision on the merits of such objections was

merely deferred until an actual objection was voiced at trial. "[W]e are going to wait until trial and

you can makeyo11r o~jections al Iha! time. Both of you have already made your arguments in the letters,

so the Comt 1vill decide ii al the time oftrial 1vhen the o~jection is made." Tr. 802 (emphasis added).

1n accordance with this Court's ruling, Defendant preserved his claim with respect to the

testimony of Ms. Hicks as to "statements by Defendant while he was President of the United States"

by making a timely objection prior to her testimony. Indeed, on May 3, 2024, immediately after the

People called Ms. Hicks to the stand and before the start of her direct examination, the following

colloquy took place:

"MR. BOVE,: May I approach?

THE COURT: Sure.

MR. BOVE: Thank you. Judge, I am sorry. We want to put on the record ow: objection on

Presidential immunity grounds. I expect there will be testimony from Ms. Hicks related to

statements by President Trump while he was President of the United States. Unless you tell

me it is necessary, I prefer not to lodge the objections question by question. We object to

the subject of her testimony based on the authorities we submitted, and our position being

that the testimony is evidence of official acts being presented at a criminal trial against the

President, and it should be precluded.

MR. COLA GELO: I don't anticipate we will be showing any exhibits that fall within that

category. We intend to elicit testimony, and we have briefed at length the argument that the

rule of inadmissibility that Mr. Bove just described does not exist and is not a rule. The

inadmissibility rule was not a rule that was ever recognized. Several cases that we have cited

has held the exact opposite in the analogous context of consular immunity. As we cited in

other papers holding that evidence of otherwise immune conduct is nonetheless admissible

in a trial regarding criminal conduct for non-immune acts. So, the testimony we intend to

elicit involves statements by the Defendant, and there is no doctrine that would allow

excluding it.

12

[* 12]

THE COURT: I believe I ruled on this as well. So the objection is noted. I don't think you

need to object as to each question.

MR. BOVE: Thank you,Judge." Tr. 2120-2122.

Therefore, this Court agrees that the objection was properly preserved as to the testimony

of Ms. Hicks pertaining to official acts. Defendant identifies the official acts evidence as ''President

Trump's private conversations with the White House Communications Director," and separates

those conversations into four specific communications. Defendant's Motion at pgs. 2-3, 9-11.

Although Defendant now appears to expand his objection to include "[a]ll of Hicks's testimony

concerning events in 2018," 10 there is no reference in the testimony to any alleged official acts other

than the four he has identified. In fact, of the 98 pages of transcript memorializing Ms. Hicks's

testimony, only 11 pages pertain to the four instances identified by Defendant. Those four objections

are preserved and will be addressed individually in the discussion section below.

Defendant objected at trial and properly preserved his Presidential immunity claim with

respect to Form OGE 278e. Tr. 2369-2370, People's Exhibit 81.

Defendant failed to object to the testimony of Ms. Westerbout on the grounds of Presidential

immunity at any time during the course of the trial and thus, his current claim as to her testimony is

unpreserved.

Likewise, Defendant failed to preserve the majority of his Presidential immunity claims with

respect to Mr. Cohen's testimony. The subject matter of all of Defendant's claims in the instant

motion relate to a so-called "pressure campaign," statements relating to an FEC investigation, and

lastly, statements related to Mr. Cohen's testimony before Congress and the Special Counsel's

investigation into alleged Russian interference in the 2016 presidential election. Defendant's Motion

at pgs. 12-16, 33-40. According to the People, the pressure campaign referred to measures taken by

Defendant while President and others, to "dissuade Cohen from cooperating with investigations into

the payments to McDougal and Stormy Daniels." People's Response at p. 4. The People sought to

introduce evidence of a pressure campaign for three purposes: to demonstrate Defendant's

consciousness of guilt, to rebut Defendant's claim that certain witnesses, including Mr. Cohen, were

benefitting from their testimony, and to explain to the jwy why certain witnesses, including Mr.

Cohen, at various times denied certain allegations which they later recanted and acknowledged as

true. Tr. 41-58. Defendant sought a pre-trial ruling to exclude evidence of tl1e pressure campaign on

10

Defendant's Motion at pg. 26.

13

[* 13]

the grounds that such evidence violated the Presidential immunity doctrine, as well as on relevance

and other evidentiary grounds. While this Court declined to rule on Defendant's motion on his

Presidential immunity claims as untimely, this Court agreed \Vlth Defendant on the other evidentiary

grounds and in its Decision and Order on Defendant's Motions in limine, dated March 18, 2024,

excluded testimony about the alleged pressure campaign unless and until such time as Defendant

opened the door to such testimony.

Opening statements commenced on April 22, 2024. In his opening statement, Defendant

raised the vety subject this Court had earlier cautioned would likely open the door to testimony about

the alleged pressure campaign. As a result, on April 30, 2024, before introducing certain evidence,

the People renewed their request for permission to elicit testimony about the pressure campaign. Tr.

1652. The Court entertained extensive argument whether Defendant had in fact opened the door to

such testimony and if so, the purpose for which it could be introduced. Tr. 1652-1662. Defense

counsel ultimately agreed that the testimony could properly be elicited to advance the People's theory

of the alleged pressure campaign, but maintained his objection that it should not come in to prove

consciousness of guilt. "So, with respect to the other proffered reasons for some of this testimony

to counter financial benefits to Mr. Cohen and Ms. Daniels and to explain why they changed their

story, that makes sense. r\nd I think they are going to talk about that on direct, but consciousness of

guilt is of a different order, in our view." Tr. 1660. As a result, this Court modified its previous ruling

to the extent that the testimony would be permitted for the limited purpose of rebutting the

challenges to Mr. Cohen's, and others', credibility, but could not be introduced as evidence of

consciousness of guilt. Tr. 1661-1662. Defendant thereafter objected to the introduction of People's

Exhibits 407J;' through 4071, immediately prior to their introduction. 11 Tr. 3167-3168. Thus,

Defendant's claim as to these exhibits was properly preserved. However, at no time immediately

prior to, or during, Mr. Cohen's testimony did Defendant voice any further objections to official acts

evidence on Presidential immunity grounds. Thus, the remaining claims are not preserved.

The record is clear that Defendant did not make any Presidential immunity-based objections

at trial other than those identified above, and Defendant concedes as much. However, Defendant

11

During the lengthy colloquy addressing the purported pressure campaign on April 30, 2024, defense counsel

made a passing reference to Defendant's April 16, 2024, filing which included Presidential immunity claims as to

People's Exhi bits 407F through 4071. On May 10, 2024, Exhibits 407F through 4071were offered into evidence. In

lieu of making a speaking objection or requesting a sidebar, the objection voiced by Defendant was "Your Honor,

the same objection as discussed last week." Giving broad deference to Defendant and every benefit of the doubt,

this Court will recognize an objection Defendant made on Presidential immunity grounds, ten days prior on April

30, 2024, as to exhibits 407F through 4071.

14

[* 14]

claims that he preserved his Presidential immunity claims in pre-trial submissions and was thus not

required to object to each piece of evidence when it was offered. This argument not only ignores

this Court's clear pre-trial ruling directing him to do precisely that which he now claims he was not

required to do, but is contrary to the law. CPL § 470.15(4)(a) is clear that a ruling or instruction of

the court must be duly protested by the defendant. See Grcry, 86 NY2d at 19 ("[I]n order to preserve

a claim of error in the admission of evidence or a charge to the jury, a defendant must make his or

her position known to the court."). If Defendant genuinely believes that his pre-trial filings satisfy

his preservation requirement, it begs the question why he nonetheless voiced a clear objection prior

to the testimony of Ms. Hicks? Equally confounding is Defendant's explanation for objecting to the

admission of OGE form 278e as a mere effort "to make clear that [Defendant] maintained the

immunity objection as to doc11menlary official acts." Defendant's Reply at pg. 5 (emphasis added). This

argument is unavailing. In essence, Defendant's argument is that preservation is achieved by voicing

a single objection to testimonial evidence be seeks to preclude, presumably the one made prior to

the testimony of Ms. Hicks, and a corresponding single objection to documentary evidence, d1e

OGE Form 278e. This is simply not the law. A general motion to preclude "witness tesrin1ony" prior

to trial, which this Court did not rule on, does not satisfy the obligation of counsel to make timely

objections. J\ gain, under Defendant's theory, a defendant need only register a single general

objection to testimonial evidence - such as hearsay, for example - at the start of trial and another

objection to hearsay contained in documents, to preserve any and all hearsay objections for the

entirety of a six-week trial. This argument not only ignores settled law, it also ignores the practical

rationale for the preservation requirement in the first place.

With respect to Ms. Wcsterhout, Defendant did not object to her tesrin1ony on Presidential

immunity grounds either in pre-trial submissions or at trial. Defendant argues that he preserved an

objection in his pre-trial filings, apparently referring to a broadly worded general objection to the

introduction of official acts evidence contained in his March 7, 2024, pre-trial motion. That objection

lacked any specificity and referred generally to the testimony of ,vitnesses. It is not for a trial court

to independently identify, ,vithout guidance from counsel, the evidence a party finds objectionable.

Lastly, Defendant claims he did not object to Ms. Westerhout's testimony, as he had done p rior to

the testimony of Ms. Hicks, to "avoid antagonizing tJ,e court or testing its patience." Defendant's

Reply at pg. 5. However, an examination of the trial record demonstrates that this Court did not

curtail counsel or limit his right to object. In fact, the record demonstrates that counsel objected

approximately 170 times during the course of the trial.

15

[* 15]

Because Defendant failed to timely object to Ms. Westerhout's testimony about Defendant's

"work habits," "preferences," "relationships and contacts," and "social media" practices at the White

House,12 the motion to set aside the verdict on those grounds is denied as unpreserved. Because

Defendant failed to timely object to Mr. Cohen's testimony other than that relating to People's 407F

through 407!, the motion to set aside the verdict on those grounds is denied as unpreserved.

Despite Defendant's failure to preserve the objections he raises in the instant motion, other

than those pertaining to Ms. Hicks and Exhibits 407F through 4071, this Court will nonetheless

consider his motion on the merits, in its entirety.

Section B: Official and Unofficial Acts

Unlike Tnrmp, this court need not decide whether the cnmes of which Defendant was

convicted constitute official acts because Defendant concedes that they were decidedly unofficial.

The much narrower issue presented here is whether a discrete subset of evidence admitted at trial

constituted official acts deserving of some level of immunity, whether it be absolute or presumptive.

To evaluate each of those claims, it is important to understand the context of the unofficial acts for

which Defendant stands convicted.

The evidence adduced at trial established that a meeting between Defendant, Ivfr. Pecker,

Chairman of American Media, Inc. ("AMI"),13 and Mr. Cohen, took place in 2015 in Trump Tower.

At that meeting, the three participants conspired to influence the 2016 presidential election. The

scheme required that Ivfr. Pecker publish positive stories about Defendant to promote his

presidential candidacy. Mr. Pecker would also prevent publication of negative stories about

Defendant by acquiring the stories and not publishing them. Ivfr. Pecker would also, among other

things, publish negative stories about rival presidential candidates. The jury heard evidence that

various stories were published by AMI in accordance with this agreement. The jury also heard about

two stories that were obtained to prevent their publicatio n. The stories were purchased subject to

non-disclosure agreements (" TDAs") to prevent the public from hearing the allegations contained

therein. One NDA was executed between AMI and Karen McDougal ("Ms. McDougal"), a woman

who claimed to have had an affair with Defendant prior to his campaign for the presidency. A second

NDA was executed between Ivfr. Cohen, on behalf of Defendant, and Stormy Daniels ("Ms.

12

Defendant's Motion at pgs. 31-33.

13

American Media is a publishing company that publishes celebrity and health and fitness magazines, including

The National Enquirer, the Globe, Life & Style, In Touch, Closer, Us Weekly, Shape and Muscle, and Fitness and

Flex. Tr. 914.

16

[* 16]

Daniels") a/k/a Stephanie Clifford, an adult film actress who alleged to have had an intimate

encounter with Defendant in 2006.

With respect to Ms. McDougal, the funds to pay the NDA were provided by AMI. With

respect to Ms. Daniels, the funds to effectuate the NDA were provided by Mr. Cohen on behalf of

Defendant. The testimony further established that Defendant reimbursed Mr. Cohen for those

payments with checks he signed and authorized in 2017 when he was President. Those checks and

the financial documents related to the checks, falsely reflected the payments as retainer fees for Mr.

Cohen in his capacity as private counsel to Defendant and not as reimbursement for Mr. Cohen's

payment to Ms. Daniels.

Turning now to the evidence at issue, this Court must first determine whether certain

evidence admitted through Ms. Hicks, Ms. Westerhout and Mr. Cohen as well as postings by

Defendant on social media, and financial disclosure form OGE Form 278e for 2017 reflected official

acts subject to absolute immunity.

In Tr11mp, the majority identified only one instance of official conduct entitled to absolute

immunity and remanded the matter for the District Court to conduct the remainder of the analysis

as to all other conduct at issue. 14 The Court provided guidance to the District Court to assist in

differentiating between official and unofficial acts, noting, in part, that "[i]t is the nature of the

function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity

analysis." Trump at 2322 guoting Fomster v. White, 484 US 219, 229 [1988].

As noted by Justice Coney-Barrett in her concurrence in part, in the absence of precedent

directly on point, the use of a hypothetical is a highly useful legal tool and one would be hard-pressed

to devise a hypothetical more on point to guide the analysis between official and unofficial conduct

than the case at bar: is a President's in-office conduct to conceal payments to an adult film actress

to keep information from the public eye relating to an encounter that occurred prior to his

Presidency official or unofficial?

While J udge Helletstein in the Southern District of New York did not conduct the type of

full-throated analysis proscribed by Trump because the otice o f Removal he considered was filed

well before Trump was decided, he nonetheless did analyze some of the conduct at issue here. In

rejecting Defendant's Supremacy claim in the instant matte,~ Judge Hellerstein concluded that

" [r]eimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the

14

Trump held t hat Defendant is accorded absolute immunity with respect to the specific conduct alleged in that

indictment involving his discussions with Justice Department officials. Trump at p. 15.

17

[* 17]

performance of a constitutional duty," and "[f]alsifying business records to hide such

reimbursement, and to transform the reimbursement into a business expense for [defendant] and

income to Cohen, likewise does not relate to a presidential duty." Trump, 683 FSupp3d at 347.

It is therefore logical and reasonable to conclude that if the act of falsifying records to cover

up the payments so that the public would not be made aware is decidedly an w1official act, so too

should the communications to further that same cover-up be unofficial.

T estimony of H ope Hicks

Ms. Hicks was Director of Communications for the Trump Organization beginning in

October 2014. In January 2015, she transitioned to the position of Press Secretary for Defendant's

campaign in his run for President. Tr. 2126-2127, 2136. She testified at trial about certain allegations

that became public during the final days of the campaign that cast Defendant in a negative light. She

further testified about the manner and extent to which she participated in Defendant's response to

the allegations. Ms. Hicks worked in the White House from January 20, 2017, until April 2018, and

retu1:ncd in March 2020 until January 2021. Her first position was Director of Strategic

Communications. In that role she "worked closely with - with the communications team and the

press team on message development and organizing events to help showcase Mr. Trump's

accomplishments, the agenda of the Administration. I worked closely with Mr. Trump on media

opportunities for him." Tr. 2208. In August 2017, Ms. Hicks assumed the position of

Communications Director. Tr. 2207-2208. ln that role, she "oversaw the team," "coordinating all

of the communication efforts for the Administration from the White House throughout all of the

agencies, and making sure that each of [sic] principals of the agencies and the agencies themselves

were prioritizing Mr. Trump's agenda, and that we were all working together to maximize the impact

of any positive messages that we were trying to get out and share with the J\mcrican people" and

"capitalize on any opportunities to showcase Mr. Trump and his work, the President in a good light."

Tr. 2210.

Defendant argues that in her roles at the White House, any communications between Ms.

Hicks and Defendant must receive absolute immunity pursuant to the Take Care and Vesting

Clauses, as Defendant's ability to speak freely to Ms. Hicks was a core function of the Executive.

According to Defendant, because Ms. Hicks wielded executive power on his behalf, authority that

exists pursuant to Article IT of the Constitution, any communications he had with her are subject to

absolute immunity, or at the very least, presumptive immunity. The People argue that the

18

[* 18]

communications Defendant had with Ms. Hicks, which are the subject of this motion, constitute

unofficial acts not entitled to any level of immunity and submit that even if the Court were to find

that the communications fall within the outer perimeter of Defendant's authority, subject to

presumptive immunity, tl1at presumption has been rebutted by ample evidence unrelated to motive

as required under Trump.

Defendant identifies four communications. Defendant's Motion at pgs. 9-11. 15 They are as

follows:

Hicks 1: Ms. Hicks testified she was aware that on March 20, 2018, Ms. McDougal sued AMI

over the DA she entered into with AMI. People's Exhibit 319 is a text message between Ms. Hicks

and Ms. Westerhout, then Executive Assistant to Defendant as President. The text was sent on

March 20, 2018, the same day the lawsuit was filed. In the text, Ms. Westerhout asks Ms. Hicks,

"Hey. The President wants to know if you called David Pecker again?" That was the extent of Ms.

Hicks's testimony about that text. Tr. 2210-2213.

Hicks 2: Ms. Hicks testified that shortly after tl1e McDougal lawsuit was filed, Ms. McDougal

was interviewed on CN by Anderson Cooper. Ms. I licks testified that following that interview,

she spoke with Defendant "about the news coverage of ilie interview, how it was playing out." Ms.

Hicks did not testify as to any actual statements Defendant made to her. Tr. 2214-2215. There was

no furilier testimony from Ms. Hicks regarding this interaction wiili Defendant.

Hicks 3: Ms. Hicks testified about a January 2018 inquiry by ilie Wall Street Journal ("WSJ")

regarding a story it planned to publish about the alleged sexual encounter between Defendant and

Ms. Daniels and ilie DA which was executed in 2016 in the days leading up to the election. Tr.

2215-22. In her testimony, Ms. Hicks stated that she discussed the story with Defendant and "how

to respond to the story, how he would like a team to respond co the story." Tr. 2217. She further

testified about ilie following statements attributed to a White House official in iliat WSJ article:

"[t]hese are old, recycled reports, which were published and strongly denied prior to the election"

ilie official "declined to respond to questions about an agreement wiili Ms. Clifford." Tr. 2218,

People's Exhibit 181. Ms. Hicks testified she was not ilie official, but that she had "discuss[ed] this

statement" wiili Defendant before it was issued.'6 Tr. 2218-2219.

15

The four communications were not introduced in chronological order. They will be addressed here in the

order in which they came into evidence at trial.

16

Ms. Hicks testified that she was not certain, but that the official referenced was likely the Deputy Press

Secretary. Tr. 2218.

19

[* 19]

Hkks 4: Ms. Hicks testified about a February 2018 conversation she had with Defendant

about a statement attributed to Mt. Cohen in a ew York Ti.mes (" Yr") article the day before. Tr.

2219. In the article, Mr. Cohen is reported as stating, among other things, that he made a payment

to Ms. Daniels without Defendant's knowledge. Ms. Hicks further testified that Defendant told her:

"[h]e spoke to Michael, and that Michael had paid th.is woman to protect him [Defendant]

from a false allegation, um, and that - you know, Michael felt like it was his job to protect

him, and that's what he was doing. And he did it out of the kindness of his own heart. He

never told anybody about it. You know. And he was continuing to try to protect him up until

the point where he felt he had to state what was true." Tr. 2219-2220.

She further testified that Defendant told her:

"that he thought it was a generous, um, you know, thing to do, and he was appreciative of

the loyalty," and that Defendant "wanted to know how it was playing, and just my thoughts

and opinion about this story versus having the story - a different kind of story before the

campaign had Michael not made that payment," and that Defendant's "opinion was it was

better to be dealing with it now, and that it would have been bad to have that story come out

before the election." Tr. 2220-2221.

Defendant's argument that any communication he had with Ms. Hicks is subject to absolute

immunity by virtue of the position she held in the White House is mistaken. "It is the nature of the

function performed, not the identity of the actor who perform(s] it, that inform[s] our immunity

analysis." Tmmp at 2322 quoting Forrester v. White, 484 US 219, 229 [1988]. Indeed, the President

himself may speak in his unofficial capacity as a candidate or party leader, and certainly he can do so

in his private capacity as well. Any argument that pt-ivate conduct transforms into official conduct

by communicating about the same to an individual with a particular title is without merit. Analysis

of the trial record demonstrates that Hicks 1 through 4 reflect communications - or mere topics of

communications - which manifestly pertain to unofficial or private conduct and are inextricably

intertwined with private discussions and events which began before Defendant's Presidency.

All four instances relate to pre-inauguration intimate interactions between Defendant and

two different women, and the ongoing effort to conceal those interactions post-inauguration.

Defendant's attempts to sweep these communications under the protections afforded by the Take

Care and Vesting Clauses is unpersuasive and Defendant has not referenced any Constitutional

authority upon which he was acting for any of the four communications with Ms. Hicks.

20

[* 20]

The personal nature of Hicks 1 through 4 is made even clearer when viewed alongside

testimony introduced through Mr. Pecker. To begin, Mr. Pecker's testimony reflected that his

relationship with Defendant was a personal one and remained so after the inauguration. Mr. Pecker

served no government function at any time, official or otherwise. Further, Mr. Pecker's testimony

tracked the same subject matter as that referenced in Hicks 1 through 4, yet Defendant did not and

could not make a single immunity-based objection to it prior to, during, or after trial Tr. 1228-1231

(communications between Defendant-President and Mr. Pecker regarding Mr. Pecker's pre-election

assistance with the "McDougal matter"); Tr. 1236-1238, 1239 (communications between Defendant-

President and Mr. Pecker regarding Ms. McDougal's interview with Anderson Cooper); Tr. 1238-

1239 (phone call bet\veen Mr. Pecker and Ms. Hicks relating to extending Ms. McDougal's

employment contract with AMI so "she would not go out and give any further interviews or talk to

the press or say negative comments about American Media or about [President] Trump."). In fact,

Hicks 1 through 4 perfectly track the unobjected to conversations previously testified to by Mr.

Pecker.

A finding that Hicks 1 through 4 constitute unofficial conduct is consistent with the holding

and policy concerns expressed by the Court in Tr11mp. Conversations and meetings with a White

House Communications Director about personal matters involving an alleged affair and a sexual

encounter that occurred prio.r to taking the Office of the President of the United States are

undoubtedly not the "greatest public interest[s]" the Supreme Court contemplated ·when it wrestled

with protecting a President's ability to "deal fearlessly and impartially \vith the duties of his office."

Tr11mp at 611, citing f'z tzgerald, 457 US at 750 quotingAckennan, 444 US at 203.

Defendant's argument that these communications fall at least within the outer perimeter of

his authority also fails. The testimony was most certainly palpably beyond any actual authority

Defendant possessed in his capacity as President. 17 However, even if this Court were to find that the

communications do fall within the outer perimeter of his Presidential authority, it would also find

that other, non-privileged trial testimony provided ample non-motive related context and support to

rebut a presumption of privilege and that Defendant was acting in his personal capacity and not

17

Contrary to Defendant's interpretation, the Supreme Court in Clinton did not hold that a President's

communications with his private attorney, thereafter, shared with the public, are within the outer perimeter of

his authority. The Court definitively stated that that issue was not before it. Clinton v. Jones, 520 US 681, 686

(1997].

21

[* 21]

pursuant to his authority as President. Nor does the introduction of that evidence pose any danger

of intrusion on the authority and function of the Executive Branch.

Testimony of Madeleine Westerhout

Ms. Westerhout testified that she had been employed by the Republican National Committee

for three and one-half years until January 2017 when she joined the transition team for Defendant

as President-elect. She then worked as Special Assistant to the President and later as Executive

Assistant to the President. Tr. 2984. Her function was to assist Defendant in various ways, primarily

by facilitating communications with other parties - both personal and professional. Tr. 2984-2996.

In the transition year, she engaged often with Rhona Graff, who had been Defendant's Executive

r\ssistant at the Tn.imp Organization, in part, to ensure Ms. Westerhout had access to Defendant's

personal contact list. She further testified about Defendant's work habits and preferences, including

how and in what form he communicated on social media.

Defendant argues that the introduction of Madeleine Westerhout's testimony relating to

"presidential practices" including "work habits," "preferences," "relationships and contacts," and

"social media practices" violated the Presidential immunity doctrine. Defendant's Motion at pgs. 11-

12, 31-32.

As previously noted, objection to Ms. Westerhout's testimony was unpreserved and thus

unreviewable. Nonetheless, as an alternative holding, this Court finds that the argument also fails on

the merits because her testimony reflected unofficial conduct in its entircty: 8

It bears noting that before Ms. Westerhout testified, it was Defendant who first elicited

testimony about Defendant's work habits and practices from Ms. Hicks on cross-examination as

excerpted below:

Defense Counsel: And that office that you described the Oval Office and the area around it,

that was a very hectic space in 2017, right?

Ms. Hicks: Yes.

Defense Counsel: And it sounds like for a period of time when you had that job, you could

sec from where you were sitting the resolute desk?

Ms. Hicks: Yes.

Defense Counsel: That's where the President sat?

Ms. Hicks: Yes.

Defense Counsel: When he was acting as President, right?

18

In fact, defense counsel stated he had "no objection" to the People's request to introduce a contact list

provided to Ms. Westerhout by Trump Organization employee Rhona Graff at the White House. A line of

questioning Defendant now claims was inadmissible. Tr. 3001.

22

[* 22]

Ms. Hicks: That's right.

Defense Counsel: So you got a sense of how chaotic that environment was day to day, right?

Ms. Hicks: Uh-huh. That particular area wasn't necessarily chaotic in a bad way. I just want

to clarify. It was very busy. There was a lot going on. There were certainly parts of the

experience that were chaotic, but he was constantly moving.

Defense Counsel: People were working very hard to make it not chaotic and keep it orderly?

Ms. Hicks: Yes.

Defense Counsel: But, the fact is, there were many meetings and a lot going on, right?

Ms. Hicks: Yes.

Defense Counsel: And from where you sat, you could sec that the President was frequently

multitasking, right?

Ms. Hicks: Yes.

Defense Counsel: And people were interrupting what he was doing, right?

Ms. Hicks: Yes.

Defense Counsel: Different primities would get caUcd out to his attention and he would

pivot?

Ms. Hicks: That's right.

Tr. 2239-2240.

Ms. Westerhouc's testimony on direct examination, and further explored on cross-

examination, paralleled the cross-examination of Ms. Hicks regarding Defendant's work habits and

presidential practices. Defense Counsel repeated the strategy when he cross-examined Ms.

Westerhout. Through his cross-examination of :Ms. Westerhout and Ms. Hicks (as well as Rhona

Graff) 19 , counsel created a record from which he later argued tl1at Defendant was not fully cognizant

of the nature of the checks he signed, which formed ilie basis for 11 of the 34 counts he was

convicted of, because he was busy multi-tasking as President of ilie United States. Tr. 4484-4487. In

fact, counsel's cross-examination of Ms. \'v'esterhout delved much furilier into Defendant's "work

habits" ilian did her testimony on direct examination:

Defense Counsel: And so, would you see him signing iliings wiiliout reviewing them?

Ms. Westerhout: Yes.

Defense Counsel: And would you see him signing checks without reviewing iliem?

Ms. Westerhout: Yes.

Defense Counsel: And you would see him signing checks while he was on ilie phone; right?

Ms. Westerhout: Yes.

Defense Counsel: Would you see him sometimes signing checks when he was meeting with

people?

Ms. Westerhout: Yes.

Defense Counsel: And tl1ere were different types of people iliat he was meeting witl1; right?

Ms. Westerhout: Yes.

19

Defendant also pursued this line of questioning regarding Defendant's practice of multi-tasking while signing

checks in his cross-examination of Rhona Graff, Executive Assistant to Defendant at the Trump Organization. Tr.

1523-1524.

23

[* 23]

Defense Counsel: Sometimes he was meeting with the top foreign leaders in the world; right?

Ms. Westerhout: Yes, uh-huh.

Defense Counsel: And other times he was meeting with you?

Ms. Westerhout: Yeah, uh-huh.

Defense Counsel: And so, he wouldn't be signing the checks when he was meeting with the

top people in the world?

Ms. Westerhout: Yes.

Defense Counsel: But maybe when he was meeting with you, talking about something else,

he would also be signing documents?

Ms. Westerhout: Yes, talking about the schedule or anything that had been going on.

Defense Counsel: The Chief of Staff that he would be meeting with?

Ms. Wcsterhout: Yes.

Defense Counsel: And other people, he would be doing that?

Ms. Westerhout: That's right.

Defense Counsel: He was a person who multitasked; right?

Ms. Westerhout: Definitely.

(Tr. 3114-3115).

Indeed, counsel established through his cross-exarrunat1on of Ms. Westerhout, that her

coordination with Trump Organization employee Rhona Graff to obtain Defendant's contact list

was decidedly a personal and not a professional function.

Defense Counsel: And you were asked by the Prosecutor if you were - jf you coordinated

with the Trump Organization during that first year by asking questions of the Trump

Organization employees; right?

Ms. Westerhout: Yes.

Defense Counsel: The person that you coordinated with most was Rhona Graff; right?

Ms. Westerhout: Yes.

Defense Counsel: And this did not have to do with the Trump Organization business; did

it?

Ms. Westerhout: No.

Defense Counsel: It had to do with his personal affairs; right?

Ms. Westerhout: Yes, uh-huh.

Defense Counsel: For example, you needed hjs contact list; right?

Ms. Westerhout: Yes, uh-huh.

[... ]

Defense Counsel: So that first year you spent a lot of time talking with Rhona Graff; right?

Ms. Westerhout: Yes.

Defense Counsel: But you did not spend time talking with the Trump Organization

employees to coordinate business of the Trump Organization; right?

Ms. Westerhout: No, uh- uh.

Defense Counsel: It was just personal aspects for President Trump; right?

Ms. Westerhout: That's correct.

(Tr. 3036- 3037).

24

[* 24]

This is not to say that Ms. Westerhout could never engage in communications subject to

Presidential immunity. However, just as was the case with Ms. Hicks, Ms. Westerhout's mere role as

Executive J\ssistant does not per se cloak her communications and observations of the President with

absolute immunity. Indeed, defense counsel identified certain portions of her testimony as pertaining

to ptivatc matters. Ms. Westerhout's testimony about her observations that Defendant prefened to

work in a dining area rathet than at the Resolute Desk, or that he preferred to use a Sha,pie marker

over a ball point pen docs not create an unacceptable risk of "undue pressures or distortions" to a

President's work. Trump at 615. or docs a reference to the fact that Defendant carried papers when

he boarded Air Force One or Maxine One - or that he multi-tasked when he met with his Chief of

Staff - elevate her observations to the level of a National Security concern.

Defendant alleges that the People "forced" Ms. Westerhout, through an "invasive" direct

examination, to reveal details about how the Defendant operated the Executive Branch, for example,

"[Defendant] liked speaking with people in person or on the phone," he "liked to read," "U1]c liked

hard copy documents," and he took "[a] lot" of calls each day from as early as 6:00 am until "late

into the night." Simply stated, Ms. Westerhout's testimony about these observations do not concern

the "core Commander In Chief power [... ] for which 'absolute' in1munity applies." Defendant's

Motion at pg. 32.

J\s Ms. Westerhout's testimony did not reference any official conduct, no level of immunity

applies. As an alternative finding, even if the testimony did pertain to conduct falling within the outer

perin1eter of his Presidential authority subject to presumptive immunity, this Court finds that the

People have once again rebutted that presumption without invoking the motive for the conduct.

Office of Government Ethics Form 278c

Defendant argues that the introduction into evidence of the OGE Form 278e submitted in

2018 (People's Exhibit 81) violated the Presidential immunity doctrine because completion of the

form constitutes an official act. OGE Form 278c is an Annual Financial Disclosure Report required

to be submitted to the Office of Government Ethics.

Trump Organization Senior Vice President and Controller Jeff McConney, testified that

Form 278e is a "Conflict of Interest Form that the Government requires certain individuals to file

annually, semi-annually" and that the Defendant filed the form since "when he declared his

candidacy in 2015" through January 2017 when Defendant was no longer working at the Trump

Organization. Mr. McConney testified that he worked on that form on behalf of Defendant before

25

[* 25]

he became President for ''each year (Defendant] was a candidate or a Federal official." Tr. 2366-

2368.

Defendant concedes that the President is not the only person required to complete OGE

Form 278e as it is a Conflict of Interest Form for high-level federal officials. Defendant's Motion at

pg. 40 citing 5 C.F.R. § 2634.104(a). Thus, simply because Defendant signed the form when in office

docs not dictate that such function falls within the outer perimeter of his authority. While

Defendant's statement that he "was required to make the disclosures on the Form in his official

capacity as President" may be true, the disclosures were not made pursuant to his conclusive and

preclusive authority. Rather, he did so because the President is one of the federal employees required

to complete the Form in the same way that he was required to complete the Form when he was

merely a Presidential candidate. As Trump made clear, even communications between the President

and Vice President must be analyzed to determine whether they constitute official acts protected by

the Presidential immunity doctrine. A financial disclosure form that is required to be prepared and

filed by other federal government employees cannot be subject to Presidential immunity. Further,

no decision-making authority is implicated by the filing of the document other than the decision

whether to comply with the requirement, and to complete the form truthfully, the same decisions all

other mandated federal employees must make with respect to Form 278e.

As OGE Form 278e does not require communications from Defendant that are within his

exclusive and preclusive Article II authority, or within the outer perimeter of his authority, the

statements by Defendant on that form are not deemed official conduct and thus, receive no

immunity.

Testimony of Michael Cohen

Mr. Cohen testified that he was employed as Executive.Vice President and Special Counsel

to Defendant at the Trump Organization &om 2007 to January 2017. He participated in the Trump

Tower meeting with Defendant and Mr. Pecker in 2015 and thereafter, engaged in conduct in

furtherance of the agreement made at that meeting. The conduct included communicating ·with Mr.

Pecker and other employees of AMI, and other individuals who possessed information deemed

harmful to Defendant's campaign. This was all carried out at the direction of Defendant. Mr. Cohen

testified that, among other things, he executed an NDA with Ms. Daniels on behalf of Defendant to

prevent her account from becoming public in the weeks prior to the ovembcr 2016 election. He

further testified that he paid Ms. Daniels through her attorney, to effectuate the terms of the DA

26

[* 26]

and that he did so on behalf of Defendant. Mr. Cohen further testified that he left the Trump

Organization to become Personal Attorney to the President following Defendant's inauguration, and

at no time did he have a position in the White House or anywhere else in government. Tr. 3475,

3494-3495. Mr. Cohen testified that he did not receive any salary or retainer in his position as

Defendant's Personal Attorney. Tr. 3499-3501. Rather, Mr. Cohen benefited financially from his role

because it created other financial opportunities for him. Tr. 3500. Mr. Cohen testified that Defendant

reimbursed him with checks in 2017 for the payment he made to Ms. Daniels. The checks falsely

purported to represent payments on a non-existent retainer agreement and the reimbursement was

structured that way to conceal the payment Mr. Cohen made to Ms. Daniels, to prevent her

allegations from becoming public and to influence the 2016 Presidential election.

otwithstanding these efforts to conceal the true nature of the payments, testimony from

various witnesses established that the allegations by Ms. McDougal about an affair and Ms. Daniels

about a sexual encounter, became public after Defendant was sworn in as President of the United

States. Initially, Mr. Cohen claimed over the course of many months, that Defendant knew nothing

about th.e NDA or the payments to Ms. Daniels. Later however, he recanted, informing others,

including various federal and state prosecutors, that Defendant was indeed aware of and in fact,

authorized the payment to Ms. Daniels and that he later reimbursed Mr. Cohen in the manner

described above.

Mr. Cohen testified that his representations, and at times prior sworn testimony, changed in

the months following disclosure of the Dl\ and the related reimbursement checks. The People

gave prior notice, and introduced evidence of, a "pressure campaign" Defendant mounted to compel

Mr. Cohen to remain silent as to the agreement and Defendant's complicity in the efforts to influence

the 2016 election. This Court initially precluded testimony about the pressure campaign in its

entirety, but later qualified that should Defendant "open the door," the Court would permit its

introduction for the limited pu1pose of rehabilitating Mr. Cohen's credibility to explain why Mr.

Cohen had initially denied that Defendant knew about the scheme but later recanted and affirmed

that Defendant was indeed complicit. On April 30, 2024, the People argued that the door had been

opened by Defendant in his opening statement and that the evidence should be allowed in as per the

Court's earlier ruling and caution. This Court agreed the door had been opened and permitted the

evidence to be introduced to rebut Defendant's attacks on Mr. Cohen's credibility. The evidence of

27

[* 27]

a pressure campaign came in the form of testimony from Mr. Cohen, e-mails from and to Robert

Costello,20 an attorney, and other evidence including Twitter posts by Defendant.

Defendant argues that the following communications introduced through Mr. Cohen

constitute evidence of official-acts subject to absolute immunity:

Cohen 1: Mr. Cohen's testimony regarding his prior testimony before the House Permanent

Select Committee on Intelligence on Russian interference in the 2016 election. At trial, Mr. Cohen

testified that he "was staying on Mr. Trump's message that there was no Russia-Russia-Russia and

again, in coordination with the Joint Defense Team, that's what was preferred," to explain why he

was untruthful to Congress. Defendant argues that Mr. Cohen's trial testimony, that he "felt" he

"needed" what the People described as "the power of the President" to "protect" him in connection

with rus testimony before Congress, violated the Presidential immunity doctrine. Defendant's

Motion at pgs. 12-13.

Cohen 2: An e-mail sent on June 13, 2018, by Robert Costello to Mr. Cohen stating, in part,

"What you do next is for you to decide, but if that choice requires any discussion with my friend's

client, you have the opportunity to convey that this evening, but only if you so decide." Mr. Cohen

testified on direct examination that he interpreted that e-mail as a reference to "potential pre-

pardons, I believe." People's Exhibit 207, Tr. 3603, Defendant's Motion at pg. 13. Mr. Cohen

testified further on cross-examination that "I spoke to my attorney about it because we had seen on

television President Trump talking about, potentially, pre-pardoning everybody and putting an end

to this, what I deemed to be a nightmare," Tr. 3835-3836, Defendant's Motion at pg. 13.

Cohen 3a-b: Defendant argues that the following exhibits and testimony were introduced

through Mr. Cohen in violation of the Presidential immunity doctrine:

• Cohen 3a: A February 6, 2018, text from Mr. Cohen to a YT reporter that Defendant "just

approved me responding to [the FEC) complaint and statement. Please start writing and I

will call you soon;"21 Mr. Cohen's February 13, 2018, public response to the FEC complaint

in wruch Mr. Cohen stated that he used his own funds to pay Ms. Daniels and that "[n]either

the Trump Organization nor the Trump campaign was a party to the transaction with

20

As discussed in greater detail below, in April 2018, following the execution of search warrants on his office and

home, Mr. Cohen sought legal representation. Robert Costello was one of the attorneys he initially consulted.

Mr. Costello represented to Mr. Cohen that he had a close relationship with Rudy Giuliani, a lawyer with close

ties to Defendant. Mr. Costello represented that these relationships would be beneficial to Mr. Cohen because

they would provide a back channel for communicating with Defendant to ensure that Mr. Cohen would be

protected. Tr. 3593-3595.

21

People's Exhibit 260, Defendant's Motion at pg. 13.

28

[* 28]

[Daniels];"22 a February 19, 2018, text from Jay Sekulow, private counsel to Defendant, to

Mr. Cohen that Mr. Sekulow's "[c]lient says thanks for what you do;"23 l'vlr. Cohen's trial

testimony that he interpreted the text message to mean Defendant appreciated "the

statement that [Cohenl was putting out to the press on the FEC;"24 and testimony from Mr.

Cohen that he "was instructed ... by Mr. Trump, to keep in touch with Jay Sekulow because

he [Sekulow] was in contact with Mr. Trump."25

• Cohen 3b: Mr. Cohen's testimony that he told Mr. Pecker, "the [FEq matter is going to be

taken care of and the person, of course, who is going to be able to do it is Jeff Sessions," and

that Defendant "told" Mr. Cohen that Attorney General Sessions would address the matter. 26

Cohen 4: E-mail communications with Robert Costello on April 21, 2018, relating to

Defendant's posts on Twitter earlier that day. People's Exhibit 205, Defendant's Motion at pgs. 14-

15. The subject line of the e-mail read "Giuliani" and the heading read "Attorney Client

Communication P1:ivileged." Defendant specifically references the last line of the e-mail wherein Mr.

Costello wrote, "P.S. Some very positive comments about you from the White House." Mr. Cohen

testified that the e-mail from Mr. Costello "let me know that I was still important to the team and

stay the course, that the President had my back." Defendant alleges that the communications in the

e-mail were from Defendant and thus, constitute official acts. Tr. 3598-3600.

None of the above-referenced communications constitute official acts.

With respect to Cohen 1, the Court finds that this testimony did not in any way introduce

evidence of an official act by Defendant. Mr. Cohen testified at trial about testimony he gave under

oath to Congress relating to an ongoing investigation, the subject matter of which were allegations

of Russian interference in the 2016 election and a Trump Moscow real estate project. Tr. 3550. As

Mr. Cohen had admitteclly testified untruthfully before Congress, and the false prior testimony was

used to attack his credibiliry, the People were permitted to attempt to rehabilitate him by explaining

why he testified untruthfully. The reference to "no Russia Russia Russia" did not reference official

conduct of Defendant, but merely Mr. Cohen's explanation that he had perjuriously minimized the

frequency and duration of his contacts with Defendant about the Trump real estate project to curry

favor with Defendant at a time when Mr. Cohen felt he needed Defendant's support. The trial

22

People's Exhibit 202, Defendant's Motion at pg. 13.

23

People's Exhibit 217, Defendant's Motion at pg. 13.

24

Tr. 3573, Defendant's Motion at pg. 14.

25

Tr. 3571, Defendant's Motion at pgs. 13-14.

26

Tr. 3577, Defendant's Motion at pg. 14.

29

[* 29]

evidence was clear, Mr. Cohen lied under oath to a federal body. The challenged testimony was

relevant for the jury to hear that Mr. Cohen's motivation for lying to Congress was ro remain

consistent with the Defendant with whom he had been in lock-step for decades. Significantly, the

subject of Cohen 1 relates to matters that occurred prior to Defendant becoming President and do

not involve communications with the President.

Cohen 2 and Cohen 4 relate to communications between Mr. Cohen and Mr. Costello. Mr.

Cohen testified that when he became the subject of certain investigations, he sought legal

representation and Mr. Costello was one of the attorneys he consulted during his search. Mr. Cohen

testified that it was of paramount importance that he retain an attorney who would represent his

interests. The communications ,vith Mr. Costello paint the picture of an attorney who was attempting

to convince 1fr. Cohen that his connections to the President made him the best choice for the job

of legal counsel to Mr. Cohen. Mr. Cohen ultimately was not convinced. The communications in

Cohen 2 and 4 reflect Mr. Costello's approach. Mr. Cohen's testimony that he believed Mr. Costello

was referring to potential "pre-pardons" did not purport to be a communication from Defendant

and thus, did not implicate any Presidential immunity doctrine. In fact, the record demonstrates that

Defendant agrees.

On April 15, 2024, the prosecution and the defense argued at length about certain

communications. T he parties differed ,vith regard to whether the communications were probative

of the pressure campaign. Defendant argued for preclusion of the testimony to prevent witnesses,

such as Mr. Cohen, from inculpating the Defendant. Defendant's position at that time, was "there

is zero evidence that anything that Mr. Costello said to Mr. Cohen came from President Trump."

Tr. 52. Counsel further argued "there is no connection between the communication from Mr.

Costello to Mr. Cohen and anything President Trump said or did [... ]." Tr. 52. The substantive

testimony from Mr. Cohen regarding "pardons" which Defendant now argues violated Presidential

immunity, was in fact elicited not by the People, but by defense counsel on cross-examination. In

fact, defense counsel explored the subject of presidential pardons at length to attack Mr. Cohen's

credibility. Defendant's arguments on this point in the instant motion are wholly inconsistent with

the position he took at trial:

Defense Counsel: So, I want to talk now about your testimony to Congress about whetl1er

you ever requested a pardon, okay?

Mr. Cohen: Yes, sir.

Defense Counsel: On that February 27, 2019, House Committee Hearing you gave a

statement under oath that you never asked for, nor would you ever accept a pardon from

President Trump, correct?

30

[* 30]

Mr. Cohen: Correct.

Defense Counsel: And that was false, correct?

Mr. Cohen: No sir.

Defense Counsel: Why was that not false?

Mr. Cohen: I never asked for it. I spoke to my attorney about it because we had seen on

television President Trump talking about, potentially, pre-pardoning everybody and putting

an end to this, what I deemed to be a nightmare. So I reached out to my attorney to ask him

whether or not this is legitimate.

Defense Counsel: So, when you were asked - when you provided testimony - and, again,

same thing happened on that occasion, you had to prepare remarks that you provided the

committee and then you read into the record, right?

Mr. Cohen: Y cs, sir.

Defense Counsel: And both of those prepared remarks in writing and also when you said,

and I have never asked for, nor would I accept a pardon from President Trump, correct?

Mr. Cohen: Correct.

Defense Counsel: Now, that was on Februru:y 27'h. Do you remember about ten days later

you were deposed in the House Oversight Committee?

Mr. Cohen: Yes, sir.

Defense Counsel: And do you remember being asked the same question about accepting a

pardon and you saying that you directed your lawyer to explore the possibility because you

were a hundred percent open to accepting it?

Mr. Cohen: Yes, sir.

Defense Counsel: And the lawyer - there were a couple of lawyers that you were talking

about, right? One was Mr. Ryan, who worked - who was your lawyer who worked with a

law firm called McDermott, Will and Emery?

Mr. Cohen: Yes.

Defense Counsel: And you spoke with a lawyer named Robert Costello about that same

issue, about exploring the possibility of a pardon, correct?

Mr. Cohen: I spoke to Mr. Costello about that as well.

Defense Counsel: And in that deposition so, not the sworn testimony on Febn1ary 27'\ but

in that deposition, you said that, you directed your la,vyers to explore the possibility of a

pardon because the possibility was constantly being dangled in your face, right?

Mr. Cohen: Correct.

Defense counsel's cross-examination of Mr. Cohen on the subject of Presidential pardons continued

for some time. Tr. 3838-3843. For counsel to ignore his extensive cross-examination on this subject,

following what was a passing reference to "pre-pardons" generally on direct examination,

mischaracterizcs the actual record.

Cohen 3a and 36 relate to communications about investigations by the FEC into conduct by

Mr. Cohen and Defendant during the 2016 Presidential campaign. The communications relate to

Defendant as candidate for P resident, not to Defendant as President and reference no official act.

Notably, all the participants in these conversations were decidedly related to Defendant in his

personal capacity, Mt. Cohen and Mr. Sckulow as prior and then private counsel, and Mr. Pecker, a

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[* 31]

personal friend. Similarly, Mx. Cohen's attempt to funnel a journalist a story relating to the payments

he made to Ms. Daniels, was intended to shine a more favorable light on Mx. Cohen and Defendant

- his co-conspirator. That e-mail had nothing to do with official acts by Defendant as President and

everything to do with him as candidate.

This Court agrees and is persuaded that the testimony referenced in Cohen 3a and 36 does

not implicate Defendant's conclusive and preclusive authority. The People argue, "[a]s relevant here,

the FEC has "exclusive jurisdiction with respect to the civil enforcement" of FECJ\, 52 U.SC. §

30106(6)(1), which is not "subject to control of the Attorney General," Fed. Election Comm't, v. NRA

Political Victory F11nd, 513 U.S. 88, 92 n.1 (1994) (citing 28 U .S.C. §§ 516, 519)." People's Response at

pg. 30. Further, "[b]ecause neither the President nor the Attorney General has authority to interfere

with an FEC investigation, this situation is distinct from one in which the President l- ..] directs the

Attorney General to initiate a prosecution or investigation[... ]." People's Response at p. 31, n 6.

As previously noted, the objections to Mr. Cohen's testimony were unpreserved and thus

unreviewable. Nonetheless, as an alternative holding, this Court finds that the argument also fails

on the merits because his testimony reflected unofficial conduct and no level of immunity applies.

Even if the testimony did pertain to conduct falling within the outer perimeter of his Presidential

authority subject to presumptive immunity, this Court finds that the People have once again rebutted

that presumption without invoking the motive for the conduct.

Defendant's T witter Posts

Turning to Defendant's claim that certain Tweets he caused to be posted constitute official

acts, in dispute are People's 407F, 407G, 407H, and 407I. The Tweets cover a range of topics,

including but not limited to: disparaging remarks about a ew York Times reporter; explaining what

a NDA is; and presumably, advice whether one should retain Mx. Cohen as an attorney.

As previously stated, this Court finds that Defendant has properly preserved his arguments

as to this evidence. However, after applying the standards set forth in Tmmp, this Court finds that

none of the four posts constitute official acts.

Defendant argues that the social media posts reflect the President's extraordinary power to

speak to his fellow citizens and that viewing the context of the Tweets further supports that position.

Defendant's Motion at pg. 33. The Twitter account, Defendant contends, was one of the White

House's main vehicles for conducting official business. Id. In support of this position, Defendant

argues that "the official-acts conclusion is further supported by the fact that President Trump relied

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[* 32]

on a White House employee to help him operate the account." Defendant's Motion at pg. 34.

Defendant further argues that the prosecution "relied on false opinions from Cohen and Daniels to

try to suggest that these Tweets were directed at them, individually, rather than what they objectively

were: communications with the American people regarding matters of public concern bearing on

President Trump's credibility as the Commander in Chief." id. Defendant claims that 4071 simply

reflects Defendant's comments on, and criticism of, federal prosecutors and regulators and that,

pursuant to Tmmp, such posts are covered by the Presidential immunity umbrella because

"investigative and prosecutorial decision making is 'the special province of the Executive Branch,'

and the Constitution vests the entirety of the executive power in the President." Defendant's Motion

at pg. 36.

The People contend that the Tweets "consist solely of 'unofficial acts' for which 'there is no

immunity."' People's Response at pg. 13 citing Tntmp at 651. They further argue that the "challenged

Tweets bear no resemblance to the kinds of public comments that the Supreme Court indicated

would qualify as official presidential conduct." Td. at 15. The People also argue that, even if the

Tweets are deemed "official conduct,'' the presumptive immunity that attaches is easily rebutted, as

there is no danger that introducing the posts into evidence, presents any "intrusion on the authority

and functions of the executive branch." Id. at 16.27

"The justifying purpose of the immunity recognized in Fitzgerald and the one we recognize

today are not that the President must be immune because he is President ... they are to ensure that

the President can undertake his constitutional functions free from undue pressure or distortions."

Tmmp at 615. The Tweets do not constitute the type of conduct the Tmmp Court intended to protect

when it discussed a President's ability to communicate with the public. To find otherwise would

effectively mean that every statement ever uttered (or posted on social media) by a sitting President,

whether personal or official, in his or her own interests or that of the Country, would be protected

by absolute immunity. Were that the case, the Tmmp Court would not have felt it necessary to provide

guidance to assist the Federal District Court in properly analyzing and determining which

Presidential acts are official and which are not. For example, when discussing Defendant's alleged

attempts to undermine the January 6 certification proceeding, the Trump Court noted that there may

27

The People also argue that this evidence "consists of a public record of an official act" and is thus admissible

even if it is deemed official acts. People's Response pg. 13. This Court is not persuaded that this is an accurate

reading of Trump as to evidence of a public record and thus, declines to apply this reasoning to the Tweets at

issue.

33

[* 33]

be "contexts in which the President, notwithstanding the prominence of his position, speaks in an

unofficial capacity - perhaps as a candidate for office or party leader." Tmmp at 629. This pojnt was

further emphasized by Chief Justice Roberts when he unequivocally wrote that "not everything the

President does is official." Id. at 642. The analysis and guidance are pragmatic.

Undoubtedly, there are Tweets and other communications that a President makes that qualify

as official communications with the public regarding matters of public concern. In the modern

world, social media is but one of many forms of communication that a President can employ to

convey messages of the utmost import, such as to comfort a hurting nation after a tragedy. The

Tweets in question, however, do not fit that mold. As such, none of the disputed Tweets, whether

preserved or not, constitute official acts subject to absolute immunity, nor do they fall within the

outer perimeter so as to raise a presumption of immunity.

When the Trump Court discussed Defendant's Tweets, and in particular his speech on

January 6, 2021, the Court reasoned that a President possesses an "extraordinary power to speak to

his fellow citizens and on their behalf." Trump at 629. The Tmmp Court illustrated that this

extraordinary power, could be exercised to advance the public interest, such as when the nation

needs to be comforted in the wake of a national tragedy. Id. People's 407F reflects Defendant's

comments about "The New York Times and a third rate reporter named Maggie Haberman, known

as a Crooked H Flunkie [... )going out of their way to destroy Michael Cohen and his relationship

with me in the hope that he will 'flip.' [... ] Sorry, I don't see Michael doing that [... ]." Viewing

People's 407F in the context of Tmmp, it leaves little doubt that such a communication does not

approach the illustrations provided by the Tmmp Court. People's 407F docs not advance a policy

concern or other public interest. As such, it is not an official act and it is not protected by any level

of immunity. Even if this Court were to find that it falls within the outer perimeter subject to

presumptive immunity, it would find that the People have rebutted that immunity without relying

on the motive behind the conduct.

This Court finds that People's 407G is also entirely personal in nature. The subject is a

personal retainer with an attorney about a personal matter and an NDA. The post asserts that it was

a "private agreement'' between two individuals, entered into before Defendant took Office. This is

precisely the type of personal speech the Trump Court contemplated when it held that "although

Presidential immunity is required for official actions to ensure that the President's decision making

is not distorted by the threat of future litigation stemming from those actions, that concern does not

34

[* 34]

support immunity for unofficial conduct." Trump at 615. This Court finds Defendant's argument

that the Trump Court intended to protect this type of speech unavailing.

This Court also finds that the Tweet in People's 407H does not constitute an official act nor

1s it the type of communication the Trump Court contemplated when it referenced President

Theodore Roosevelt's famous "bully pulpit'' as a means to "persuade Americans, in ways that the

President believes would advance the public interest." Id. at 629 ("Indeed, a long-recognized aspect

of Presidential power is using the office's 'bully pulpit' to persuade Americans, including by speaking

forcefully or critically, in ways that the President believes would advance the public interest.").

People's 407H, in this Court's view, merely contains Defendant's thoughts on the services of his

former private attorney.

Regarding the final Tweet, People's 4071, Defendant argues that this Tweet is afforded the

protections of Presidential immunity as it is part of the "core authority of the Nation's Chief

Executive" to "comment upon and criticize the conduct of federal prosecutors and regulators"

which he derives from Article II authority. Defendant's Motion at pgs. 35, 36. This is because the

content of this Tweet, and its context, referred to Mr. Cohen, his former personal attorney, as a

person ,villing to "make up stories" and "break," as opposed to Paul Manafort, Defendant's

campaign chairman, who was not. Just as the title of Communications Director does not bestow

absolute immunity to any and all communications with Ms. Hicks, neither docs mere reference to

the Justice Department convert a Tweet to an official act. This Court is not convinced by

Defendant's argument. While the Trump Court has made clear that the President must be protected,

and therefore receive absolute immunity, when conducting official business such as when directing

the Office of the Attorney General, the Defendant's Tweet in People's 407! contains nothing of the

sort. or is this Court persuaded, for the reasons stated in the preceding paragraphs, that tlus Tweet

made in Defendant's personal capacity, constitutes an official act. This Twitter post and the

communication contained therein docs not constitute a core official act nor does it fall within the

outer perimeter of his official duties.

PART VI: HARMLESS ERRO R

The People argue that if this Court concludes that "any evidence of official presidential acts

[were] improperly admitted at trial," Defendant's request to "set aside the verdict should be rejected

on harmless-error grounds." People's Response at pg. 38. In response, Defendant argues that

harmless error does not apply here because "federal constitutional reasoning forecloses harmJcss-

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error analysis under New York law in a manner similar to the treatment of 'structural errors' and

'mode of proceedings errors."' Defendant's Motion at pg. 44.

Even if this Court did find that the disputed evidence constitutes official acts under the

auspices of the Tnm1p 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.

The Court of Appeals has held that "'[t)he paramount purpose of all rules of evidence is to

ensure that the jury \vill hear all pertinent, reliable and probative evidence which bears on the

disputed issues."' People v. Robinson, 17 Y3d 868 [2011] citing to People v. Mille,~ 39 NY2d 543, 551

[1976). If the error at issue violates a defendant's constitutional rights, the constitutional test for

harmless error applies. People v. Goldstein, 6 Y3d 119 (2005). That is, the burden is on the People to

show that any error was harmless beyond a reasonable doubt. Id. citing Chapman v. Califomia, 386 US

18, 24 [1967] and People 11. Crimmins, 36 NY2d 230 [1975). on-constitutional harmless errors do not

involve constitutional provisions. As such, there is a less exacting standard of review. fn such

instances, the error is deemed harmless if there is overwhelming evidence of a defendant's guilt and

there is no significant probability that the error affected the outcome of the trial. People 11. Mairena, 34

NY3d 473 [2019); People v. Vt11ias, 154 AD3d 971 [2d Dept 2017). "Our State test with respect to

non-constitutional error is not so exacting as the Supreme Court test for constitutional error."

Crimmins, 36 NY2d at 241. "We observe that in either instance, of course, unless the proof of the

defendant's guilt, without reference to the error, is overwhelming, there is no occasion for

consideration of any doctrine of harmless error." Id. Whether "overwhelming proof of guilt" exists

cannot be determined with mathematical precision. Id. The vast majority of New York courts,

including the court in Crimmins, consider two discrete factors when determining whether an error

was harmless: (l) the quantum and nature of the evidence against the defendant if the error is excised

and (2) the causal effect the error may never theless have had on the jury. People v. C!Jde, 18 NY3d

145 [2011 j cili11g to People 11. l lam/in, 71 NY2d 750 [1988].

As discussed in Part V(a) supra, mode of proceedings errors occupy a very narrow set of

claims and "go to the essential validity of the process and are so fundamental that the entire trial is

irreparably tainted." Kel!J 5 NY3d 116, 119-120, People v. Cabrera, 41 N .Y.3d 35 [2023). These types

of errors are not easily defined. People v. Mack, 27 NY3d 534 [2016). Since such errors require

"reversal ,vithout regard to the prejudice, or lack thereof, to the defendant, the Court of Appeals has

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been hesitant to expand thjs doctrine. Id. at 540. "The designation of a mode of proceeclings error is

therefore 'reserved for the most fundamental flaws." Id. at 541.

Defendant's primary argument on thjs point is that "Presidential Immunity errors were not

and are never 'harmless."' Defendant's Reply at pg. 18. This argument is premised on the claim that

errors involving Presidential immunity constitute mode of proceeclings errors. Defendant argues that

the official acts evidence at the heart of hls motion fall under the rubric of Presidential immunity

and are therefore "structural errors" of the "type of danger that would lead Presidents to be chilled

from taking the bold and unhesitating action required of an independent Executive." Id. at pgs. 19-

20. Defendant points to the Supreme Court's warrung that "official acts evidence raises a unique risk

that the jurors' deliberations will be prejudiced by their views of the President's policies and

performance while in office." Id.

The People dispute the "importance or constitutional nature of official acts immunity" and

submit that the conduct alleged here is not unique. People's Response at pg. 36. T hey further argue

that many "cvidentiary privileges derive from important public policy concerns ... fylet the Court of

Appeals has applied harmless error analysis even to extremely important evidentiary privileges."211 Id.

Finally, the People argue that even if the disputed evidence was introduced in error at trial, the

remaining evidence supports a fincling of guilt. 29 People's Response at pg. 39.

As an initial matter, this Court docs not agree that the alleged error here qualifies as a mode

of proceedings error such that it is not subject to harmless error analysis. Mode of proceeclings errors

typically involve situations that strike at the heart of a trial, such as a court failing to advise counsel

"with meaningful notice of [a] substantive jury note." People v. Monison, 32 Y3d 951 [2018]. In

addition to the examples provided in Part V(A) supra, other examples of the high procedural bar can

include a trial judge's inappropriate commentary before a jury regarcling a defendant's decision not

to testify (People v. McLucas, l 5 NY2d 167 [1965]) and the conviction for a crime that docs not exist

within the Penal Law (People v. Martinez, 81 NY2d 810 [1993]. In each of those instances, the Cow:t

of Appeals found that the errors were so fundamental to "the organization of the court or the mode

28

In a footnote, the People cite examples such as People v. Rivera, 25 NY3d 256 [2015) where harmless error

analysis was applied to the physician-patient privilege and People v. Carmona, 82 NY2d 603 (1993) where it was

applied to the cleric-congregant privilege. People's Response at pg. 36 n8.

29

As the People tacitly acknowledge in Footnote 9 of their Response, the trial record in this matter is dense.

Nonetheless, this Court w ill be succinct when referencing the selected testimony and exhibits in this portion of

its Decision.

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of proceedings proscribed by law," that the failure to preserve their objection was of no import.

Patterson, 39 N.Y.2d at 295.

This Court finds that even if the disputed evidence was admitted in error, such error was

harmless. " ot every error committed in the course of a criminal prosecution will necessarily lead

to a reversal or modification of a judgment of conviction, and that, subject to certain exceptions, an

error will be disregarded if it is determined to have been harmless." The Powers of the ew York

Court of Appeals, NYCTJ\PP §21 :13, Crimmins 36 Y2d at 239. "Even when constitutional errors,

as other errors, have occurred in a case, they do not require reversal when a reviewing court can

conclude \vith confidence that they were harmless beyond a reasonable doubt." Smith, 97 NY2d at

330.

In addition to presiding over every stage of these proceedings, this Court has carefully

scrutinized the trial record, including all evidence such as: invoices, general ledger entries, recorded

phone conversations, text messages, e-mails, Mr. Weissclberg's handwritten notes, and video

footage. This also includes testimony from Mr. Cohen30 , Ms. Daniels, Mr. McConney, Keith

Davidson, Mr. Pecker, and Gary Farro to name but a fraction of the evidence the jury heard and

considered, separate and apart from that evidence and select testimony which Defendant challenges

on Presidential immunity grounds. Also included was evidence in the form of Defendant's own

words from his many published books. This Court concludes that if error occurred regarding the

introduction of the challenged evidence, which it does not, and such error were excised, such error

was harmless in light of the overwhelming evidence of guilt. Crimmim at 230.

PART VII: U SE OF OFFICIAL A CTS IN GRAND JuRY

D efendant argues that the use of alleged official acts evidence in the grand jury tainted the

proceedings and requires dismissal of the indictment. Defendant's Motion at pg. 41. The official acts

referenced by Defendant essentially mirror the trial evidence he has challenged. See Part V above.

The only evidence presented in the grand jury, that was not introduced at trial, is the testimony of

the witness identified as Trump Counselor.31

30

This Court, having had the unique opportunity to hear Mr. Cohen's testimony and to observe his demeanor on

direct and cross examination and to form an opinion as to his credibility, does in fact credit his testimony.

31 As this witness testified in the grand jury and not at t rial, they will be referred to as Trump Counselor

throughout this Decision.

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The People's response in opposition 1s similar to their arguments discussed supra.

Specifically, that Defendant did not preserve this claim and even if he had, the argument would fail

on the merits. They further argue that any error committed in the grand jury is harmless. People's

Response at pgs. 61-63. In response to the People's preservation argument, Defendant once again

argues that the Trump Court addressed an issue of first impression and therefore, Trump "constitutes

'good cause' for the timing of the motion." Defendant's Reply at pg. 2.

In Part V, this Court analyzed the respective arguments of the parties as they apply to the

evidence introduced at trial. Herc, this Court analyzes the arguments in the context of the grand jury

presentation and sees no reason to depart from the conclusion reached supra. In Part V(A), this Court

ruled that where Defendant failed to make a timely and proper objection to the introduction of

evidence at trial, he has failed to adequately preserve his objections to such evidence for purposes of

CPL§ 330.30(1) review. The same is true in the context of grand jury testimony.

.Herc, Defendant never lodged an objection to the sufficiency of the grand jury proceedings

or the propriety of Trump Counselor's testimony on the grounds of Presidential immunity. otably,

Defendant, in his Reply to the People's Opposition, does not, and it seems cannot, point to any

instance where such an objection was made. In Defendant's Reply, be again references "good cause"

for the timing of his motion and his failure to preserve his arguments. Defendant's Reply at pg. 2.

As this Court reasoned when addressing preservation in Part V(A) supra, "good cause" and "interest

of justice" arc not legally viable standards for a CPL § 330.30(1) review in the absence of

preservation. Car/er, ·63 NY2d 530.

In the alternative, were this Court to find that Defendant did properly preserve his objections

as to the purported official acts evidence presented to the grand jury, Defendant's claim is

nonetheless denied on the merits. It is not necessary for this Court to repeat its detailed analysis in

Section V supra. The testimony of Trump Counselor did not pertain to official acts as contemplated

by Tn1mp. Instead, this Cour t will only address Defendant's at:guments with respect to Trump

Counselor as well as Mr. Pecker's testimony relating to Attorney General Jeff Sessions. 12

Trump Counselor testified regarding their role and duties during Defendant's time as

President. They further testified that they had "formal and informal" meetings with Defendant.

Regarding the instant matter, they testified to having general discussions about Ms. Daniels when

news about the payments resurfaced in 2018. This testimony ranged from media appearances the

32 The Court's analysis of the testimony of Mr. Pecker is made in light of the Trump Court's ruling that a President

has the absolute discretion to "decide which crimes to investigate and prosecute." Trump at 621.

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witness made, to comments about the news, discussing NDAs with Defendant, to discussing the

various media appearances made by Ms. Daniels' attorney at the time, MichaelAvenatti. As analyzed

above, the discussions between Defendant and Trump Counselor are nothing more than

conversations about personal matters. Notably, this witness testified in the grand jury, that their

conversations with Defendant about Ms. Daniels, were not related to official conduct and dealt more

with Defendant's then private attorney. Indeed, Trump Counselor questioned why they would be

asked questions about Defendant's payments to Ms. Daniels when they had nothing to do with the

White House or the campaign.

With respect to Mr. Pecker, he testified in the grand jury, in sum and substance, what Mr.

Cohen told him: that the United States Attorney General reports to the President. A fact that is

public knowledge and involves no official acts such as the Executive Branch deciding which crimes

to investigate and prosecute.

Finally, this Court cannot agree with Defendant's interpretation of People v. Ohrenslein, 153

AD2d 342 [1st Dept 1989] that an "indictment cannot be legally sufficient if it is based on grand jury

testimony which may require inquiry into legislative acts or the motivation for legislative acts."

Defendant's Motion at pg. 42. Specifically, Defendant argues that the trial court in Ohn:nslein

"dismissed additional charges based on the finding that two of the remaining defendants were

'prejudiced by the erroneous theory' presented to the grand jury." Id. Defendant's reading of

Ohre11slei11 presumes that because Tnrmp held that a former President cannot be indicted for conduct

for which they are immune from prosecution, then the indictment here must be dismissed. This

argument is premised on a finding that the evidence in dispute, i.e. that which was presented to the

grand jury, constitutes official acts for which Defendant is entitled to immunity. This Court has not

made such a finding. As such, Defendant's motion in tlus respect is denied.

PART VIII: CONCLUSION

This Court finds that Defendant preserved his claims only as to the testimony of Hope Hicks,

OGE Form 278e, and Twitter postings identified as People's Exhibits 407F through 4071. All other

claims are denied as unpreserved; and

This Court further finds that the evidence related to the preserved claims relate entirely to

unofficial conduct and thus, receive no immunity protections; and

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As to the claims that were unpreserved, this Court finds in the alternative, that when

considered on the merits, they too are denied because they relate entirely to unofficial conduct

entitled to no immunity protections; and

further, even if this Court were to deem all of the contested evidence, both preserved and

unpreserved, as official conduct falling within the outer perimeter of Defendant's Presidential

authority, it would still find that the People's use of these acts as evidence of the decidedly personal

acts of falsifying business records poses no danger of intrusion on the authority and function of the

Executive Branch, a conclusion amply supported by non-motive-related evidence; and

Lastly, this Court concludes that if error occurred regarding the introduction of the

challenged evidence, such error was harmless in light of the overwhehning evidence of guilt.

Defendant's motion to dismiss the indictment and vacate the jury verdict pursuant to CPL §

330.30(1) is denied. ·

The foregoing constitutes the Decision and Order of the Court.

Dated: December 16, 2024

New York, ew York

Claims

Acting Justice of the Supreme Court

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