Emergency Application — Donald J. Trump, Applicant v. New York, et al.

Supreme Court briefJan 8, 2025

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APPENDIX

Order of Supreme Court of the State of New York, Appellate Division, First Judicial

Department, Justice Gesmer, Denying Application for a Stay, No. 2025-00118

(Jan. 7, 2025) ..................................................................................................... 1A

Decision and Order of Supreme Court of the State of New York, County of New York:

Part 59, Justice Merchan, Denying Motion for Stay, No. 71543/23 (Jan. 6, 2025)

........................................................................................................................... 3A

DANY’s Affirmation and Memorandum of Law in Support of Motions in Limine, No.

71543/23 (Feb. 22, 2024) ................................................................................... 5A

President Donald J. Trump’s Motions to Exclude Evidence and for an Adjournment

Based on Presidential Immunity, No. 71543/23 (Mar. 7, 2024) .................... 58A

Decision and Order of Supreme Court of the State of New York, County of New York:

Part 59, Justice Merchan, Denying Defendant’s Motion to Exclude Evidence

and for an Adjournment on the Grounds of Presidential Immunity, No.

71543/23 (Apr. 3, 2024) ................................................................................... 84A

Verified Article 78 Petition to Supreme Court of the State of New York, Appellate

Division, First Judicial Department, by President Donald J. Trump seeking,

inter alia, a Writ of Prohibition as to the April 3, 2024 Decision and Order, No.

2024-02413 (Apr. 10, 2024) ............................................................................. 90A

Pre-Motion Letter from Todd Blanche to Justice Merchan Regarding Evidentiary

Objections to Evidence Offered by DANY, No. 71543/23 (Apr. 15, 2024) ... 152A

Decision and Order of Supreme Court of the State of New York, Appellate Division,

First Judicial Department Denying and Dismissing President Donald J.

Trump’s April 10, 2024 Article 78 Petition, No. 2024-02413 (May 23, 2024)

....................................................................................................................... 154A

President Donald J. Trump’s Post-Trial Presidential Immunity Motion Seeking

Vacatur of the Jury Verdict and Dismissal of the Indictment, No. 71543/23

(July 10, 2024) ............................................................................................... 158A

President Donald J. Trump’s Motion to Dismiss Pursuant to CPL §§ 210.20(1)(h) and

210.40(1), No. 71543/23 (Dec. 2, 2024) ......................................................... 213A

Decision and Order of Supreme Court of the State of New York, County of New York:

Part 59, Justice Merchan, Denying Defendant’s Motion to Dismiss the

Indictment and Vacate the Jury’s Verdict Pursuant to CPL § 330.30(1), No.

71543/23 (Dec. 16, 2024) ............................................................................... 285A

Decision and Order of Supreme Court of the State of New York, County of New York:

Part 59, Justice Merchan, Denying Defendant’s Motion to Dismiss the

Indictment and Vacate the Jury’s Verdict Pursuant to CPL §§ 210.20(1)(h) and

210.40(1), and Resetting Sentencing for January 10, 2025, No. 71543/23 (Jan.

3, 2025) .......................................................................................................... 326A

President Trump’s Notice of Automatic Stay of Criminal Proceedings or, in the

Alternative, Motion for Immediate Stay, No. 71543/23 (Jan. 5, 2025) ....... 344A

Verified Article 78 Petition to Supreme Court of the State of New York, Appellate

Division, First Judicial Department, by President Donald J. Trump

challenging, inter alia, the December 16, 2024 and the January 3, 2025

Decisions and Orders, No. 2025-00118 (Jan. 6, 2025) ................................. 361A

President Donald J. Trump’s Memorandum of Law in Support of Motion to Expedite

Resolution of Article 78 Petition and to Stay Trial-Court Proceedings Pending

Review of Claims of Presidential Immunity, No. 2025-00118 (Jan. 7, 2025)

....................................................................................................................... 402A

Opening Page of Exhibit GX 81, Consisting of the Executive Branch Personnel Public

Financial Disclosure Report (OGE Form 278e), as completed and filed with the

United States Office of Government Ethics on Behalf of President Donald J.

Trump, for Reporting Year 2017, Submitted into Evidence, No. 71543/23

....................................................................................................................... 427A

Exhibit GX 202, Consisting of a Text Message from February 13, 2018 from Michael

Cohen to Maggie Haberman, Submitted into Evidence, No. 71543/23....... 428A

Exhibit GX 207, Consisting of a June 13, 2018 email between Robert J. Costello and

Michael Cohen, Submitted into Evidence, No. 71543/23 ............................ 430A

Exhibit GX 260, Consisting of a Set of Text Messages from 2018, involving Michael

Cohen, Submitted into Evidence, No. 71543/23 .......................................... 434A

Exhibits GX 407F, GX 407G, GX 407H, and GX 407I, Consisting of Certain Postings

on Twitter in 2018 by President Donald J. Trump, Submitted into Evidence,

No. 71543/23 .................................................................................................. 436A

Excerpts from the Transcript of Trial Proceedings, No. 71543/23 ........................ 446A

FILED: APPELLATE DIVISION - 1ST DEPT 01/07/2025 01:34 PM

NYSCEF DOC. NO. 6

2025-00118

RECEIVED NYSCEF: 01/07/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: PART 59

THE PEOPLE OF THE STATE OF NEW YORK

-against-

AFFIRMATION AND

MEMORANDUM OF LAW IN

SUPPORT OF MOTIONS IN LIMINE

DONALD J. TRUMP,

Ind. No. 71543-23

Defendant.

AFFIRMATION

Matthew Colangelo, an attorney admitted to practice before the courts of this state, affirms

under penalty of perjury that:

I am an Assistant District Attorney in the New York County District Attorney’s

Office. I am assigned to the prosecution of the above-captioned case and am familiar with the facts

and circumstances underlying the case.

I submit this affirmation in support of the People’s motions in limine.

Defendant is charged with thirty-four counts of falsifying business records in the

first degree, PL § 175.10. These charges arise from defendant’s efforts to conceal an illegal scheme

to influence the 2016 presidential election. As part of this scheme, defendant requested that an

attorney who worked for his company pay $130,000 to an adult film actress shortly before the

election to prevent her from publicizing an alleged sexual encounter with defendant. Defendant

then reimbursed the attorney for the illegal payment through a series of monthly checks. Defendant

caused business records associated with the repayments to be falsified to disguise his and others’

criminal conduct.

Attached as Exhibit 1 is a true and correct copy of defendant’s Witness Disclosure

for Bradley A. Smith dated January 22, 2024.

Attached as Exhibit 2 is a true and correct copy of United States v. Suarez, No.

5:13-cr-420 (N.D. Ohio June 24, 2014).

Attached as Exhibit 3 is a true and correct copy of the signed engagement letter

between Bradley A. Smith and Todd Blanche dated January 4, 2024, for People v. Trump, Ind. No.

71543-23.

Attached as Exhibit 4 is a true and correct copy of the Decision & Order in People

v. The Trump Corporation, Ind. No. 1473/2021 (Sup. Ct. N.Y. Cnty. Jan. 5, 2022).

Attached as Exhibit 5 is a true and correct copy of the Hearing Transcript in People

v. The Trump Corporation, Ind. No. 1473/2021 (Sup. Ct. N.Y. Cnty. Oct. 20, 2022).

Attached as Exhibit 6 is a true and correct copy of a document titled Expert Witness

Disclosure, Professor Bradley A. Smith, in United States v. Bankman-Fried, No. 22 Cr. 673

(LAK), ECF No. 276-5.

10.

Attached as Exhibit 7 is a true and correct copy of the Hearing Transcript in People

v. The Trump Corporation, Ind. No. 1473/2021 (Sup. Ct. N.Y. Cnty. Oct. 21, 2022).

11.

Attached as Exhibit 8 is a true and correct copy of the Judgment of Conviction in

United States v. Cohen, No. 18-cr-602 (S.D.N.Y. Dec. 12, 2018).

12.

Attached as Exhibit 9 is a true and correct copy of the Information in United States

v. Cohen, No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018).

13.

Attached as Exhibit 10 is a true and correct copy of the Hearing Transcript in United

States v. Cohen, No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018).

14.

Attached as Exhibit 11 is a true and correct copy of defendant’s social media posts

dated February 1, 2023, March 9, 2023, and March 27, 2023.

15.

Attached as Exhibit 12 is a true and correct copy of a document titled Certification,

In the Matter of Donald J. Trump for President, Inc., et al., Federal Election Comm’n Matter

Under Review 7324, 7332, 7364, & 7366 (Mar. 11, 2021).

16.

Attached as Exhibit 13 is a true and correct copy of the Letter from Lynn Y. Tran,

Assistant General Counsel, Federal Election Commission, to E. Stewart Crosland (June 1, 2021).

17.

Attached as Exhibit 14 is a true and correct copy of a document titled Statement of

Reasons of Chair Shana M. Broussard & Commissioner Ellen L. Weintraub, In the Matter of

Donald J. Trump for President, Inc., et al., Federal Election Comm’n Matter Under Review 7324,

7332, 7364, & 7366 (July 1, 2021).

18.

Attached as Exhibit 15 is a true and correct copy of a document titled Statement of

Reasons of Vice Chair Allen Dickerson et al., In the Matter of Donald J. Trump for President,

Inc., et al., Federal Election Comm’n Matter Under Review 7324, 7332, 7364, & 7366 (June 28,

2021).

19.

Attached as Exhibit 16 is a true and correct copy of a document titled Certification,

In the Matter of Michael D. Cohen, et al., Federal Election Comm’n Matter Under Review 7313,

7319, & 7379 (Mar. 31, 2021).

20.

Attached as Exhibit 17 is a true and correct copy of the Letter from Lynn Y. Tran,

Assistant General Counsel, Federal Election Commission, to E. Stewart Crosland (Mar. 31, 2021).

21.

Attached as Exhibit 18 is a true and correct copy of a document titled Statement of

Reasons of Commissioners Sean J. Cooksey & James E. “Trey” Trainor III, In the Matter of

Michael Cohen, et al., Federal Election Comm’n Matter Under Review 7313, 7319, & 7379 (Apr.

26, 2021).

22.

Attached as Exhibit 19 is a true and correct copy of the excerpted Hearing

Transcript in People by James v. Trump, No. 452564/2022 (Sup. Ct. N.Y. Cnty. Jan. 11, 2024).

23.

Attached as Exhibit 20 is a true and correct copy of the excerpted Trial Transcript

in People by James v. Trump, No. 452564/2022 (Sup. Ct. N.Y. Cnty. Nov. 6, 2023).

24.

Attached as Exhibit 21 is a true and correct copy of defendant’s social media post

dated October 7, 2016.

25.

Attached as Exhibit 22 is a true and correct copy of Megan Twohey & Michael

Barbaro, Two Women Say Donald Trump Touched Them Inappropriately, N.Y. Times, Oct. 12,

2016.

26.

Attached as Exhibit 23 is a true and correct copy of Natasha Stoynoff, Physically

Attacked by Donald Trump—A PEOPLE Writer’s Own Harrowing Story, People Magazine, Oct.

12, 2016.

27.

Attached as Exhibit 24 is a true and correct copy of defendant’s social media posts

dated October 15, 2016, October 16, 2016, and October 17, 2016.

MEMORANDUM OF LAW

Courts deciding whether to preclude or admit evidence must determine whether the evidence

is relevant and, if so, whether it is admissible. People v. Primo, 96 N.Y.2d 351, 355 (2001). Evidence

is relevant if it has any tendency to make a fact more or less probable than it would be without the

evidence, and the fact is material to the determination of the action. People v. Lewis, 69 N.Y.2d 321,

325 (1987). Irrelevant evidence is not admissible. See id. The court may exclude relevant evidence

if its admission violates an exclusionary rule, People v. Alvino, 71 N.Y.2d 233, 241 (1987), or “if its

probative value is outweighed by the prospect of trial delay, undue prejudice to the opposing party,

confusing the issues or misleading the jury.” Primo, 96 N.Y.2d at 355.

The Court has authority to consider pretrial motions in limine seeking evidentiary rulings

based on both “the inherent power of a trial court to admit or exclude evidence” and the court’s

“inherent authority to manage the course of trials.” People v. Michael M., 162 Misc. 2d 803, 806-07

(Sup. Ct. Kings Cnty. 1994) (citing cases). Pretrial evidentiary rulings avoid the risk of presenting

prejudicial, confusing, immaterial, or inadmissible evidence to the jury, see State v. Metz, 241

A.D.2d 192, 198 (1st Dep’t 1998), and minimize delay and disruption during trial, see Gallegos v.

Elite Model Mgmt. Corp., 195 Misc. 2d 223, 226-27 (Sup. Ct. N.Y. Cnty. 2003).

For the reasons that follow, the People respectfully request that the Court grant the People’s

motions in limine to:

preclude defendant’s proposed testimony from Bradley A. Smith regarding federal

campaign finance law;

preclude the presentation of argument or introduction of evidence that the Federal

Election Commission dismissed complaints alleging, or cleared defendant of,

federal campaign finance violations;

preclude the presentation of argument or introduction of evidence regarding any

purported decision by the United States Department of Justice not to charge

defendant with campaign finance violations;

preclude the presentation of argument or introduction of evidence regarding

defendant’s claims of selective prosecution or government misconduct;

preclude the presentation of argument or introduction of evidence regarding federal

prosecutors’ purported views of Michael Cohen’s credibility;

preclude argument regarding any alleged reliance on advice of counsel unless and

until defendant establishes a sufficient factual predicate for that defense;

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preclude evidence or argument regarding legal defenses the Court has already

rejected; and

permit the introduction of potential Molineux evidence.

Motion to exclude witness testimony or argument regarding federal election laws.

Introduction.

Defendant intends to proffer witness testimony at trial from Bradley A. Smith about

“industry norms, regulations, and practices” regarding “federal election laws,” including campaign

finance law. Ex. 1. The Court should exclude Mr. Smith’s testimony because conclusions of law

are not proper expert testimony; because his proposed testimony is irrelevant; and because the

proposed testimony would improperly mislead and confuse the jury. Two different federal courts

have precluded Mr. Smith’s proposed testimony on campaign finance law in separate criminal

prosecutions, and his testimony is just as improper here. See United States v. Bankman-Fried, No.

22-cr-673 (LAK), 2023 WL 6162865, at *3 (S.D.N.Y. Sept. 21, 2023); United States v. Suarez,

No. 5:13-cr-420, slip op. at 1-2 (N.D. Ohio June 24, 2014) (Ex. 2).

Background.

On January 22, 2024, defendant disclosed his intent to call Bradley A. Smith, a law

professor and former member of the Federal Election Commission, as a witness at trial. See Ex. 1.

Defendant styled this disclosure as a “Witness Disclosure (Background / Non-Expert Testimony),”

and stated that Mr. Smith may be called as a witness “to testify about background information

regarding federal election laws.” Id.

Defendant’s disclosure states that “Mr. Smith’s knowledge, skill, experience, training, and

education are well beyond the ordinary lay person regarding federal election law, campaign

finance law, and voting rights issues,” but asserts that “Mr. Smith is not being called as an ‘expert’

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because the defense will not ask him to give an opinion but instead will call him to testify about

industry norms, regulations, and practices.” Id.

The signed engagement letter between Mr. Smith and defense counsel for this matter

describes the “Scope of Engagement” as follows:

Blanche Law is engaging me to provide, as requested, expert consultation

in connection with litigation in the above-referenced matter, to provide

required written reports to the court, and to provide expert testimony as

necessary in both pre-trial and trial stages. If requested or approved by

Blanche Law, I may also engage in commentary with media organizations

covering the matter as part of this engagement. My services are requested

for commentary on laws and regulations pertaining to campaign finance law

and common campaign practices, and in particular to federal campaign

finance law pursuant the [sic] Federal Election Campaign Act, 52 U.S.C.

§ 30301 [sic] et seq., and regulations issued thereunder, and to historical

background on enforcement. The work may, as necessary, include

additional research.

Ex. 3 at 1. Defendant is paying Mr. Smith $1,200 per hour for this engagement. 1 Id.

Argument.

Defendant’s disclosure is properly considered a proffer of expert

witness testimony, not lay witness testimony.

As an initial matter, the Court should treat Mr. Smith’s proposed testimony as expert

testimony, not lay testimony.

Defendant has proffered Mr. Smith’s testimony on four broad topics:

•

“That federal campaign finance laws provide (1) that a candidate cannot use campaign

funds for personal expenses, (2) that if an expense does not ‘arise out’ of a campaign, it

cannot be paid for using campaign funds, even if the expense would have an impact on the

campaign, and (3) that an expenditure made by a candidate, or by a third-party on his

behalf, must be reported as a campaign contribution only if it is a campaign contribution

but not if it is a personal expenditure,” Ex. 1 at 2;

Defendant’s retention of a witness to “engage in commentary with media organizations covering

the matter” at a rate of $1,200 per hour, Ex. 3 at 1, raises separate concerns about potential efforts

by defendant to taint the jury pool or otherwise prejudice these proceedings.

12A

•

“That at the time that Mr. Cohen made the payment to Stormy Daniels, there had never

been a case in which someone was convicted of violating federal campaign finance laws

by making a ‘hush payment’ to an alleged girlfriend or former lover (either directly or

through a third party) using non-campaign funds, and that there had never been any finding

by the Federal Election Commission that such conduct violates federal campaign finance

law,” id.;

•

“That the federal prosecution of former U.S. Senator and vice-presidential nominee John

Edwards is the one public case in which a ‘hush payment’ theory has been alleged. Further,

that in that case, the federal charges—including those based on purported federal campaign

finance law violations—were either rejected by the jury or dismissed by the government.”

Id.; and

•

“That the Edwards prosecution was heavily criticized and resulted in a wide consensus,

among the public, media, and legal scholars, that the conduct alleged did not violate federal

campaign finance laws.” Id.

On its face, this proposed testimony relates exclusively to the interpretation and application of

federal campaign finance law, rather than any factual issues relevant to this case. The proposed

topics call for opinion testimony by a specialist; Mr. Smith is not a percipient witness as to any

event or conduct at issue in this prosecution.

Defendant’s witness disclosure asserts that “Mr. Smith is not being called as an ‘expert’

because the defense will not ask him to give an opinion but instead will call him to testify about

industry norms, regulations, and practices.” Ex. 1. But testimony about campaign finance law from

a law professor whom defendant himself describes as having “knowledge, skill, experience,

training, and education” in that specialized field “well beyond the ordinary lay person,” Ex. 1, is

the very definition of expert opinion testimony. See Guide to N.Y. Evid. rule 7.01(1)(a), Opinion

of Expert Witness. That defendant describes Mr. Smith’s proposed testimony as relating to

“industry norms, regulations, and practices” does not change this conclusion, because of course

the relevant norms, regulations, and practices he is describing are all governed by federal law and

regulations. And in any event, testimony regarding “industry norms” in any specialized field is

generally treated as expert opinion testimony under New York law. See, e.g., Prince, Richardson

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on Evidence § 7-307 (noting that “standards within an industry” is the subject matter of expert

testimony) (citing, e.g., Lugo v. LJN Toys, 75 N.Y.2d 850, 852 (1990)); see also Regan v. Eight

Twenty Fifth Corp., 287 N.Y. 179, 182 (1941); French v. Ehrenfeld, 180 A.D.2d 895, 896 (3d

Dep’t 1992); Bailey v. Baker’s Air Force Gas Corp., 50 A.D.2d 129, 132 (3d Dep’t 1975); Berman

v. H.J. Enters., Inc., 13 A.D.2d 199, 201 (1st Dep’t 1961).

Indeed, the engagement letter between Mr. Smith and defense counsel in this case shows

that he was retained at a $1,200-per-hour rate “as an expert consultant and witness” to provide

“expert testimony as necessary in both pre-trial and trial stages” of this prosecution. Ex. 3. Where

defendant retained a law professor and agreed to pay him $1,200 an hour to serve “as an expert

consultant and witness” by providing “expert testimony” about his interpretation of campaign

finance law (Ex. 3), on the basis of “knowledge, skill, experience, training, and education” that are

“well beyond the ordinary lay person” (Ex. 1), the Court should reject defendant’s claim that the

witness is “not being called as an ‘expert.’” 2 Id.

Mr. Smith’s proposed testimony should be excluded in full because

expert testimony as to a legal conclusion is impermissible.

The Court should preclude Mr. Smith’s proffered testimony because defendant seeks to

call him to testify about conclusions of law, and testimony regarding conclusions of law is

impermissible. Just a few months ago, Judge Kaplan in the Southern District of New York

precluded Mr. Smith’s proposed testimony for the defendant regarding the application of federal

campaign finance law to the government’s prosecution of Sam Bankman-Fried on the ground that,

For the reasons described below, Mr. Smith’s improper testimony should be excluded in full. If

his testimony is not precluded entirely, however, the Court should still conclude that he is an expert

witness and should direct defendant to comply immediately and fully with all discovery obligations

under CPL § 245.20(1)(f). Defendant should not be permitted to evade or delay reciprocal

discovery by retaining a law professor “as an expert consultant and witness,” Ex. 3, but then

claiming that “he is not being called as an ‘expert.’” Ex. 1.

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among other reasons, “Mr. Smith’s testimony is improper because he seeks to instruct the jury on

issues of law.” Bankman-Fried, 2023 WL 6162865, at *3. This Court should do the same.

Expert testimony is permitted where the Court determines that scientific, technical,

medical, or other specialized knowledge is necessary to “help the finder of fact to understand the

evidence or determine a fact in issue.” Guide to N.Y. Evid. rule 7.01(1)(b), Opinion of Expert

Witness; see People v. Inoa, 25 N.Y.3d 466, 472 (2015); People v. Cronin, 60 N.Y.2d 430, 43233 (1983). But “[e]xpert opinion as to a legal conclusion is impermissible.” Colon v. Rent-ACenter, Inc., 276 A.D.2d 58, 61 (1st Dep’t 2000) (citing Marx & Co., Inc. v. Diners’ Club Inc.,

550 F.2d 505, 508-12 (2d Cir. 1977)); see also Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala

& Bass, LLP, 301 A.D.2d 63, 68-69 (1st Dep’t 2002) (“An expert may not be utilized to offer

opinion as to the legal standards which he believes should have governed a party’s conduct.”);

People v. Kirsh, 176 A.D.2d 652, 653 (1st Dep’t 1991) (trial court properly denied defendant’s

application to call an expert who would have offered opinion as to a legal defense), leave denied,

79 N.Y.2d 949 (1992); People v. Johnson, 76 A.D.2d 983, 984 (3d Dep’t 1980) (same). Indeed,

“[t]he rule prohibiting experts from providing their legal opinions or conclusions is ‘so wellestablished that it is often deemed a basic premise or assumption of evidence law—a kind of

axiomatic principle.’” In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61, 64 (S.D.N.Y.

2001) (quoting Tomas Baker, The Impropriety of Expert Witness Testimony on the Law, 40 U.

Kan. L. Rev. 325, 352 (1992)).

Expert testimony as to a legal conclusion is properly excluded because it does not “help

the finder of fact to . . . determine a fact in issue,” Guide to N.Y. Evid. rule 7.01(1)(b), and instead

improperly infringes on the Court’s role. “Each courtroom comes equipped with a ‘legal expert,’

called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.”

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Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997) (trial court

erred in admitting expert testimony that “consisted of impermissible legal conclusions rather than

permissible factual opinions”). Courts routinely and properly exclude testimony that purports to

explain the law to the jury. See United States v. Stewart, 433 F.3d 273, 311-12 (2d Cir. 2006) (trial

court properly excluded defense expert testimony regarding legal principles because “[c]learly, an

opinion that purports to explain the law to the jury trespasses on the trial judge’s exclusive

territory”); Kirsh, 176 A.D.2d at 653 (“Any instructions . . . as to a legal defense lay within the

responsibility of the court”); Johnson, 76 A.D.2d at 984 (trial court properly excluded defense

expert because “the proposed expert testimony involved interpretation and application of the

Social Services Law and pertinent regulations and such was within the sole province of the court”).

This Court had occasion to apply this principle very recently in connection with the

proffered testimony of a defense expert in the Trump Corporation prosecution, during which the

Court repeatedly noted that “this Court will not permit this trial to become a referendum on the

Internal Revenue Code or a master class on taxation. The evidence at trial will be limited to what

is relevant and necessary for the finders of fact to perform their duties – and nothing more.”

Decision & Order 3, People v. The Trump Corporation, Ind. No. 1473/2021 (Sup. Ct. N.Y. Cnty.

Jan. 5, 2022) (Ex. 4); see also Hearing Tr. 33, People v. The Trump Corporation, Ind. No.

1473/2021 (Sup. Ct. N.Y. Cnty. Oct. 20, 2022) (“[A]s I said a long time ago, this trial is not going

to turn into a master class on taxation, and I’m certainly not going to permit the jury to become

confused by irrelevant issues.”) (Ex. 5).

As noted in Part I.C.1 above, each of the four topics of Mr. Smith’s proposed testimony

relates exclusively to the interpretation and application of federal campaign finance law. Ex. 1.

Testimony purporting to explain how campaign finance law applies to the election interference

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scheme at issue in this prosecution would run afoul of the axiomatic principle that “[e]xpert

opinion as to a legal conclusion is impermissible.” 3 Colon, 276 A.D.2d at 61. Indeed, as noted

above, a federal court very recently precluded Mr. Smith from testifying for the defense in a

criminal trial—on topics much like those he proposes to testify about here—on the ground that his

proffered testimony improperly sought to instruct the jury on the law. 4 See Bankman-Fried, 2023

WL 6162865, at *3. Mr. Smith’s effort to instruct the jury on campaign finance law should get no

more purchase in this case than it did before Judge Kaplan in the Southern District of New York.

The Court should preclude Mr. Smith’s proposed testimony here on the ground that it is improper

legal instruction. See id.; Russo, 301 A.D.2d at 68-69; Colon, 276 A.D.2d at 61; Kirsh, 176 A.D.2d

at 653; Johnson, 76 A.D.2d at 984.

Mr. Smith’s proposed testimony should be excluded in full because it is

irrelevant.

Mr. Smith’s proposed testimony should be excluded on the entirely separate ground that it

is irrelevant. Indeed, Mr. Smith was prohibited from testifying in a different federal criminal

prosecution where the trial court held that Mr. Smith’s views regarding federal campaign finance

law were irrelevant to the defendants’ own state of mind in that case. See United States v. Suarez,

No. 5:13-cr-420, slip op. at 1-2 (N.D. Ohio June 24, 2014) (Ex. 2). Mr. Smith’s testimony is just

as irrelevant here.

To the extent the Court treats Mr. Smith as a lay witness and not an expert witness, his testimony

should still be excluded. The same reasons that bar expert testimony about legal matters also extend

to lay testimony, including that it is the trial judge’s exclusive role to instruct the jury on the law.

Mr. Smith’s expert witness disclosure in the Bankman-Fried prosecution is appended as Ex. 6

for comparison to his disclosure here. As in this case, Mr. Smith sought to testify regarding Federal

Election Commission “rules and decisions governing the application and interpretation” of specific

sections of the Federal Election Campaign Act, Ex. 6 at 2; as well as purportedly “[c]ommon,

established, and well-known practices” for certain kinds of campaign contributions, Ex. 6 at 3.

17A

Defendant is charged with thirty-four felonies for falsifying business records with the intent

to commit, aid, or conceal the commission of another crime, in violation of Penal Law § 175.10.

As pertinent here, the People may allege at trial that among the crimes defendant intended to

commit, aid, or conceal are violations of the Federal Election Campaign Act (“FECA”). On that

issue, the relevant question for the finder of fact is what defendant intended when he falsely

described the reimbursements to Cohen for the Stormy Daniels payoffs as payments for legal

services pursuant to a retainer agreement; and whether his intent in doing so included concealing

Cohen’s criminal violation of federal campaign finance law in connection with that payoff. Mr.

Smith does not purport to have any direct evidence of defendant’s state of mind. His proposed

testimony about what unspecified others might have thought about the facts of a different case is

thus irrelevant to the jury’s factual findings regarding defendant’s fraudulent intent here.

Mr. Smith’s own proposed—and excluded—testimony in yet another criminal case again

provides support for the exclusion of his testimony here. In United States v. Suarez, the defendant

sought to introduce expert testimony from Mr. Smith to testify that “federal campaign laws are

confusing to individuals who lack formal training,” that “people often misunderstand the campaign

laws,” and that “it is reasonable for individuals to believe that the law allows ‘straw man’

donations.” Suarez, slip op. at 1-2 (Ex. 2). The court held that “the expert testimony offered by

Smith is inadmissible because it is not relevant.” As the court explained:

[W]hether the laws are commonly misunderstood does not weigh on

whether defendants in this case intended to violate the campaign finance

laws. What other individuals who may have contacted Smith knew or

thought simply has no bearing on what defendants knew or thought.

Because the evidence is not relevant, it will not be admitted.

Id. at 3. The exact same reasoning applies here. Mr. Smith proposes to testify that some among

“the public, media, and legal scholars” thought the conduct alleged in the United States v. Edwards

prosecution did not violate federal campaign finance laws; and the import of Mr. Smith’s proposed

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testimony on the other topics in his disclosure is that federal campaign finance law does not clearly

criminalize some personal expenditures on other facts. Ex. 1. But the only relevant question in this

case is whether—after Cohen made an illegal campaign contribution to defendant by paying

$130,000 to Stormy Daniels to silence her on the eve of a presidential election—defendant

intended to conceal that crime by falsely describing his reimbursements to Cohen as payments for

legal services pursuant to a retainer. Mr. Smith’s proposed testimony about industry norms, or

about what other people might have thought the law would criminalize on other facts, “does not

weigh on whether defendant[] in this case intended to violate [or conceal violations of] the

campaign finance laws.” 5 Suarez, slip op. at 3 (Ex. 2).

This Court reached the same conclusion as to the defense’s proffered expert in the Trump

Corporation prosecution, holding that the defendants were prohibited from offering expert

testimony regarding what “any of the high managerial agents intended” because “He’s an expert.

He was not there. He did not speak to them. He cannot read their minds. He does not know what

their intent was.” See Hearing Tr. 14, People v. The Trump Corporation, Ind. No. 1473/2021 (Sup.

Ct. N.Y. Cnty. Oct. 21, 2022) (Ex. 7). The same reasoning applies here, and the Court should

exclude Mr. Smith’s testimony in full as irrelevant.

Mr. Smith’s proposed testimony about whether the Stormy Daniels

payoff violated federal campaign finance law should be excluded

because it would mislead and confuse the jury.

If the Court does not exclude Mr. Smith’s proposed testimony in full for the reasons

identified above, the Court should exclude his proposed testimony regarding whether the conduct

And to the extent Mr. Smith did plan to testify regarding his speculative views of defendant’s

potential intent based on what Mr. Smith thinks others thought of the Edwards prosecution, that

too would be wholly inadmissible and improper; it is settled law that an expert may not testify as

to a defendant’s intent. See People v. Kincey, 168 A.D.2d 231, 232 (1st Dep’t 1990) (“It was highly

improper and prejudicial to allow [an expert] to testify concerning the defendant’s intent”).

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involved in Cohen’s payoff to Stormy Daniels “violates federal campaign finance law”—the

second topic in Mr. Smith’s witness disclosure, see Ex. 1—because it would mislead and confuse

the jury.

Michael Cohen pleaded guilty to and was convicted of two criminal counts of violating

FECA in connection with the Karen McDougal and Stormy Daniels payoffs. See Judgment of

Conviction, United States v. Cohen, No. 18-cr-602 (S.D.N.Y. Dec. 12, 2018) (the “Cohen

Judgment”) (Ex. 8). In connection with the Daniels payment in particular, Cohen was charged with

and pleaded guilty to the offense of making an excessive campaign contribution in violation of 52

U.S.C. §§ 30116(a)(1)(A) and 30116(a)(7). See Information ¶¶ 24-44, United States v. Cohen, No.

18-cr-602 (S.D.N.Y. Aug. 21, 2018) (Ex. 9); Hearing Tr. 23-24, 27-28, United States v. Cohen,

No. 18-cr-602 (S.D.N.Y. Aug. 21, 2018) (the “Cohen Hearing Tr.”) (Ex. 10). The federal district

court had an independent obligation to “assure itself . . . that the conduct to which the defendant

admits is in fact an offense under the statutory provision under which he is pleading guilty.” United

States v. Culbertson, 670 F.3d 183, 191 (2d Cir. 2012). Mindful of that obligation, the district court

accepted Cohen’s guilty plea and adjudged Cohen guilty: “[B]ecause I find your plea is entered

knowingly and voluntarily and is supported by an independent basis in fact containing each of the

essential elements of the crimes, I accept your guilty plea and adjudge you guilty of the eight

offenses to which you have just pleaded as charged in the information.” Cohen Hearing Tr. 28 (Ex.

10); see also Cohen Judgment (Ex. 8).

Mr. Smith’s proposed testimony—that “at the time Mr. Cohen made the payment to Stormy

Daniels, there had never been a case in which someone was convicted of violating federal

campaign finance laws by making a ‘hush payment’ to an alleged girlfriend or former lover (either

indirectly or through a third party) using non-campaign funds,” Ex. 1—appears intended to suggest

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to the jury that the Daniels payoff was not a crime. But it was, in fact, a crime: a federal judge

concluded that the conduct to which Cohen admitted “is in fact an offense” under FECA.

Culbertson, 670 F.3d 183, 191 (2d Cir. 2012); and Cohen went to prison for it. See Cohen

Judgment (Ex. 8). Expert testimony purporting to show that such conduct did not “violate[] federal

campaign finance law” would therefore mislead the jury and should be excluded. See, e.g., People

v. Corby, 6 N.Y.3d 231, 234 (2005); People v. Davis, 43 N.Y.2d 17, 27 (1977).

Mr. Smith’s proposed testimony about the United States v. Edwards

prosecution should be excluded because it would mislead and confuse

the jury.

Finally, and if the Court does not exclude Mr. Smith’s proposed testimony in full for the

reasons identified above, the Court should exclude the witness’s proposed testimony regarding the

United States v. Edwards prosecution—the third and fourth topics in Mr. Smith’s witness

disclosure, see Ex. 1—because it would mislead and confuse the jury.

The United States indicted former Senator and presidential candidate John Edwards in

2011 on four counts of acceptance and receipt of illegal campaign contributions in violation of

FECA, 52 U.S.C. §§ 30116(a)(1)(A), 30116(f), 30109(d)(1)(A)(i). The indictment alleged that

while running for President in 2007 and 2008, Edwards was engaged in an extramarital affair with

a woman that resulted in her pregnancy. He allegedly sought to conceal the affair and pregnancy

from the public out of concern that public disclosure would undermine his campaign. Edwards and

a campaign staffer solicited money from several friends and campaign donors of Edwards, which

was then sent to the woman to cover living expenses and medical care for the purpose of keeping

her from disclosing the affair and pregnancy during the campaign. The government alleged that

those donations were illegal contributions, and that Edwards was aware they were illegal

contributions and intentionally violated the law by accepting and failing to disclose them. See

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generally Government’s Resp. to Def.’s Mot. to Dismiss 2-6, United States v. Edwards, No. 1:11cr-161-1 (M.D.N.C. Sept. 26, 2011), ECF No. 59.

Edwards moved to dismiss the indictment on the ground that he was motivated by noncampaign-related, purely personal reasons to conceal the relationship, and that payments to

conceal an affair for personal reasons do not become unlawfully campaign-related just because

disclosure of the affair might also have the effect of damaging his candidacy for office. The

government argued that under FECA and the Federal Election Commission’s implementing

regulations, third-party payments of expenses for a candidate’s personal use are campaign

contributions—and thus subject to FECA’s donation limits and disclosure requirements—“unless

the payment would have been made irrespective of the candidacy.” Id. at 10 (quoting 11 C.F.R.

§ 113.1(g)(6)).

The district court denied the motion to dismiss without prejudice to it being raised after the

close of the government’s evidence at trial. See Hearing Tr. 4-5, United States v. Edwards, No.

1:11-cr-161-1 (M.D.N.C. Oct. 27, 2011), ECF No. 108. The defense moved again after the close

of the government’s case, and the court again denied the motion. See Trial Tr. 97, United States v.

Edwards, No. 1:11-cr-161-1 (M.D.N.C. May 11, 2012), ECF No. 303. The court ultimately

provided the following jury instructions (in relevant part): “The government does not have to prove

that the sole or only purpose of the money was to influence the election. People rarely act with a

single purpose in mind. . . . If you find beyond a reasonable doubt that one of her purposes was to

influence an election, then that would be sufficient.” See Final Jury Instructions 8-9, United States

v. Edwards, No. 1:11-cr-161-1 (M.D.N.C. May 18, 2012), ECF No. 288. The jury then acquitted

Edwards on the charges.

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Thus, in the Edwards prosecution, the government’s case was lost not on the legal

sufficiency of the allegations but on the jury’s factual findings at trial. And that jury verdict of

acquittal has no legal import here. Apart from double jeopardy protection for the specific defendant

in a given case, a jury acquittal does not establish legal precedent—it may reflect mistake,

compromise, or lenity, see United States v. Powell, 469 U.S. 57, 65 (1984); and is in any event not

a holding as to the law. The only conceivably relevant legal determinations from the Edwards case

are the denials of the defendant’s motions to dismiss and the trial court’s jury instruction quoted

above—all of which support the People here, and which Mr. Smith’s proposed testimony

conspicuously fails to address.

Here, the People intend to present evidence at trial showing that the Stormy Daniels payoff

(and the other underlying federal campaign finance violations) were not purely personal; and that

instead, at least one of the purposes of the entire hush money scheme was to influence the 2016

presidential election. Because testimony from Mr. Smith explaining that former Senator Edwards

was acquitted at trial does not illuminate whether the payoff scheme here was intended in part to

influence defendant’s candidacy for the 2016 election, its admission could only mislead and

confuse the jury. See Corby, 6 N.Y.3d at 234-35; Primo, 96 N.Y.2d at 356-57. The jury’s factual

findings about former Senator Edwards’s motives following the presentation of evidence in that

trial do not bear on defendant’s motives here. And as noted, Mr. Smith’s proposed testimony makes

clear that he has nothing to say on the factual issue that was the dispositive factor in Edwards—

namely, what was defendant’s intent when he falsified the reimbursements to Cohen. Mr. Smith’s

testimony regarding the outcome of the Edwards trial should thus be excluded as misleading and

confusing.

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II.

Motion to exclude evidence or argument regarding the Federal Election

Commission’s dismissal of complaints against defendant.

Introduction.

The Federal Election Commission (“FEC”) received a number of administrative

complaints against defendant in connection with the hush money payoffs at issue in this

prosecution and dismissed those complaints without investigation after the Commissioners

deadlocked on tie votes regarding whether or not to proceed. Defendant has asserted in public

statements and may seek to argue at trial that this prosecution is unwarranted because of those

dismissals. See Ex. 11. 6 The Court should exclude any evidence or argument at trial regarding

dismissal of the FEC complaints against defendant because those dismissals are not relevant to the

determination of any legal question or fact in issue in this prosecution, and because evidence or

argument regarding those dismissals would confuse and mislead the jury.

Background.

The FEC received and considered multiple complaints that defendant and others violated

FECA in connection with the payoff scheme involving Daniels, McDougal, and Sajudin. 7 See 11

E.g., Ex. 11 at 1 (claiming that “[t]he FEC dopped the ‘Horseface’ Daniels Fake Witch Hunt,

because they found no evidence of problems.”); Ex. 11 at 3 (claiming that “[e]very Prosecutor,

and the FEC, who looked at it, took a pass.”).

The FEC’s compliance procedures are codified at 11 C.F.R. part 111. Under those procedures,

“[a]ny person who believes that a violation of” FECA has occurred “may file a complaint in writing

with the General Counsel” of the FEC. 11 C.F.R. § 111.4(a). The General Counsel reviews those

complaints and makes a recommendation to the Commission “whether or not it should find reason

to believe that a respondent has committed or is about to commit a violation of statutes or

regulations over which the Commission has jurisdiction.” 11 C.F.R. § 111.7(a). The

Commissioners then vote on what is called a “reason to believe” finding, with an affirmative vote

of four (out of six) Commissioners required to proceed to open an investigation. Id. § 111.9(a). If

four Commissioners vote in favor of a reason-to-believe finding, an investigation is conducted and

subsequent steps in the compliance process follow (including, if warranted, a “probable cause to

believe” recommendation and finding, conciliation attempts, and civil litigation). See id.

§§ 111.9(a), 111.10, 111.16–.19. Absent four votes at the reason-to-believe stage, no investigation

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C.F.R. §§ 111.3(a), 111.4(a). As to defendant’s culpability in connection with the McDougal and

Sajudin payoffs, the six members of the FEC split three-three on whether there was reason to

believe that defendant knowingly and willfully accepted prohibited contributions, and because the

votes of four out of six members are required for a reason-to-believe finding, see 11 C.F.R.

§§ 111.9(a), 111.10(a), the Commission closed the complaints before any investigation was

conducted. 8 The three Commissioners who voted to dismiss did so not on the merits but instead as

a matter of prosecutorial discretion, explaining that “[i]n choosing how to allocate the

Commission’s limited enforcement resources, we opted against pursuing the long odds of a

successful enforcement in these matters” against Trump, and “instead voted to dismiss as an

exercise of prosecutorial discretion.” Statement of Reasons of Vice Chair Allen Dickerson et al.,

In the Matter of Donald J. Trump for President, Inc., et al., Federal Election Comm’n Matter

Under Review 7324, 7332, 7364, & 7366 (June 28, 2021) (Ex. 15).

The FEC resolved the complaints regarding defendant’s involvement in the Daniels payoff

in the same way. The FEC again stalemated (this time on a two-two vote among the four

participating Commissioners) on the question whether there was reason to believe that defendant

knowingly and willfully accepted excessive contributions from Cohen. See Certification, In the

Matter of Michael D. Cohen, et al., Federal Election Comm’n Matter Under Review 7313, 7319,

& 7379 (Mar. 31, 2021) (Ex. 16); Letter from Lynn Y. Tran, Assistant General Counsel, Federal

is conducted, and the FEC then generally “terminates its proceedings” and closes the matter. See

id. § 111.9.

See Certification, In the Matter of Donald J. Trump for President, Inc., et al., Federal Election

Comm’n Matter Under Review 7324, 7332, 7364, & 7366 (Mar. 11, 2021) (Ex. 12); Letter from

Lynn Y. Tran, Assistant General Counsel, Federal Election Commission, to E. Stewart Crosland

(June 1, 2021) (Ex. 13); Statement of Reasons of Chair Shana M. Broussard & Commissioner

Ellen L. Weintraub, In the Matter of Donald J. Trump for President, Inc., et al., Federal Election

Comm’n Matter Under Review 7324, 7332, 7364, & 7366 (July 1, 2021) (Ex. 14).

25A

Election Commission, to E. Stewart Crosland (Mar. 31, 2021) (Ex. 17); 11 C.F.R. § 111.9(a). The

two Commissioners who voted to dismiss did so not on the merits but “as an exercise of

prosecutorial discretion” because (1) the FEC faced an “extensive enforcement backlog”; (2) “a

federal judge was sufficiently satisfied” that Cohen had explained the factual basis for his guilty

plea to FECA violations “count by count, during his allocution”; and (3) Cohen had already “been

punished by the government of the United States.” Statement of Reasons of Commissioners Sean

J. Cooksey & James E. “Trey” Trainor III, In the Matter of Michael Cohen, et al., Federal Election

Comm’n Matter Under Review 7313, 7319, & 7379 (Apr. 26, 2021) (Ex. 18). Accordingly, the

two Commissioners concluded that “pursuing these matters further was not the best use of agency

resources.” Id. The Commission then closed the complaints without investigation.

Argument.

The Court should exclude evidence or argument regarding the FEC’s dismissal of these

complaints for three reasons. First, because the FEC dismissed the complaints against defendant

at the reason-to-believe stage without any investigation after the Commissioners stalemated on tie

votes regarding whether to proceed, defendant’s public claims that the FEC “found no evidence of

problems,” Ex. 11, is based on demonstrably false and misleading premises about how the FEC

conducts its enforcement matters. Argument or evidence purporting to show (falsely) that the FEC

cleared defendant of FECA culpability would improperly confuse and mislead the jury and should

be excluded. See Corby, 6 N.Y.3d at 234; Davis, 43 N.Y.2d at 27.

Second, the fact of the FEC dismissals should be excluded because it is irrelevant. The

FEC’s dismissal of administrative complaints against defendant without investigation does not

make any fact regarding defendant’s intent to defraud—or any other element of the charged

offenses—more or less probable, particularly where the Commissioners who voted to dismiss did

so not on the merits but as an exercise of prosecutorial discretion. See Lewis, 69 N.Y.2d at 325.

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Evidence or argument regarding the FEC’s dismissals should therefore be excluded as irrelevant.

See People v. Greene, 16 A.D.3d 350, 350 (1st Dep’t 2005); People v. Griffin, 173 A.D.2d 120,

124-25 (4th Dep’t 1991), aff’d, 80 N.Y.2d 723 (1993).

Finally, even if the FEC dismissals did reflect some determination by that agency regarding

whether defendant violated FECA—which they do not—the dismissals should be excluded for the

separate reason that whether defendant himself committed another crime is not material to the

jury’s determination of defendant’s intent to defraud, as this Court has repeatedly recognized in

this case. See Decision & Order on Def.’s Omnibus Motions 12 (Feb. 15, 2024) (the “Trump

Omnibus Decision”); Decision & Order on Mot. to Quash Def.’s Subpoena 10 (Dec. 18, 2023).

Courts have upheld convictions under Penal Law § 175.10 even when the defendant was acquitted

of the crimes that he intended to commit or conceal, so long as the evidence showed that,

notwithstanding the acquittal, defendant falsified business records with the requisite general intent.

See, e.g., People v. Holley, 198 A.D.3d 1351, 1351-52 (4th Dep’t 2021); People v. Houghtaling,

79 A.D.3d 1155, 1157-58 (3d Dep’t 2010); People v. McCumiskey, 12 A.D.3d 1145, 1145-46 (4th

Dep’t 2004). And there is no requirement that a defendant intend to conceal the commission of his

own crime; instead, “a person can commit First Degree Falsifying Business Records by falsifying

records with the intent to cover up a crime committed by somebody else.” People v. Dove, 15

Misc. 3d 1134(A), at *6 n.6 (Sup. Ct. Bronx Cnty. 2007) (citing People v. Smithtown Gen. Hosp.,

93 Misc. 2d 736, 736 (Sup. Ct. Suffolk Cnty. 1978)). The FEC dismissals of administrative

complaints against defendant are thus not material to whether defendant acted with the requisite

intent to conceal the commission of another crime. Evidence or argument regarding the FEC

dismissals should be excluded.

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III.

Motion to exclude evidence or argument regarding any purported decision by the

United States Department of Justice not to charge defendant with campaign finance

violations.

Introduction.

Defendant has asserted in public statements and may seek to argue at trial that this

prosecution is unwarranted because the United States Department of Justice did not indict him for

federal campaign finance violations. See Ex. 11. The Court should exclude any evidence or

argument regarding any purported decision by the Justice Department not to charge defendant with

violating federal campaign finance law because it is irrelevant and would mislead the jury.

Argument.

Defendant has frequently claimed that the Justice Department previously examined his

conduct and “found that I did nothing wrong.” Ex. 11. That defendant was not indicted by the federal

government in connection with the election interference scheme at issue here is probative of

literally nothing relevant to this prosecution.

Defendant was the sitting President during the entire period that the federal government

investigated the campaign finance violations to which Cohen pleaded guilty. 9 The Department of

Justice “has long understood that a President is absolutely immune from arrest, indictment, and

criminal prosecution while he remains in office.” Brief for the United States as Amicus Curiae

Supporting Petitioner at 11, Trump v. Vance, 140 S. Ct. 2412 (2020) (No. 19-635). Thus, even

assuming defendant was the target of a federal criminal investigation related to the campaign

finance violations to which Cohen pleaded guilty, he could not have been indicted under the Justice

Cohen pleaded guilty to federal campaign finance violations in August 2018, see Cohen Hearing

Tr. 23-24, 27-28 (Ex. 10); and the federal government concluded its investigation into whether

other individuals may be criminally liable for that conduct in July 2019. See Government’s Letter

1 n.1, United States v. Cohen, No. 18-cr-602 (S.D.N.Y. July 18, 2019).

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Department’s longstanding approach. Cf. CREW v. U.S. Dep’t of Justice, 45 F.4th 963, 968 (D.C.

Cir. 2022) (noting that “[i]n light of the sitting President’s immunity from criminal prosecution,

[Special Counsel] Mueller declined to determine whether President Trump’s potentially

obstructive conduct” in connection with the investigation into Russian interference in the 2016

presidential election “constituted a crime”).

Argument or evidence that defendant was not charged with campaign finance violations by

the Justice Department would thus improperly confuse and mislead the jury and should be

excluded. See Corby, 6 N.Y.3d at 234; Davis, 43 N.Y.2d at 27; see also, e.g., United States ex rel.

Feldman v. van Gorp, No. 03 Civ. 8135 (WHP), 2010 WL 2911606, at *2-3 (S.D.N.Y. July 8,

2010) (granting motion in limine to exclude evidence of the Justice Department’s decision not to

intervene in False Claims Act case as irrelevant, because “the government may have a host of

reasons for not pursuing a claim” (quoting United States ex rel. Atkins v. McInteer, 470 F.3d 1350,

1360 n.17 (11th Cir. 2006))).

Such argument and evidence would also be irrelevant for the same reasons identified in

Part II.C above: whether defendant himself violated FECA is not material to the jury’s

determination of defendant’s intent to defraud. Trump Omnibus Decision 12; see also People v.

Taveras, 12 N.Y.3d 21, 27 (2009); People v. Thompson, 124 A.D.3d 448, 449 (1st Dep’t 2015);

Houghtaling, 79 A.D.3d at 1157-58; McCumiskey, 12 A.D.3d at 1145.

IV.

Motion to exclude evidence or argument regarding selective prosecution or

government misconduct.

Introduction.

Defendant may seek to argue at trial that he has been singled out for prosecution based on

impermissible considerations, and—relatedly—that the charges in the indictment are novel or

unprecedented. Selective prosecution is not a valid trial defense, and the Court properly rejected

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defendant’s pretrial motion to dismiss on this basis. Trump Omnibus Decision 20-22. Because the

presentation of evidence or argument purporting to show selective prosecution would risk

confusing and misleading the jury and is not probative of defendant’s guilt or innocence, the Court

should exclude any evidence or argument regarding defendant’s claim of selective prosecution,

including argument that the prosecution is politically motivated or that the charges are novel or

unusual.

Argument.

Defendant has repeatedly stated in court filings and public statements that this prosecution

is based on impermissible motives and that he is being singled out for improper reasons. Defendant

has also asserted in court filings and public statements that the charges in the indictment are

“novel” or “unprecedented.” E.g., Def.’s Omnibus Mem. 29, 31. The Court should preclude

defendant from presenting argument and introducing evidence of purported selective prosecution

at trial because selective prosecution is not a valid trial defense, and because any selective

prosecution argument at trial would serve no purpose other than to advance an improper jury

nullification defense.

Selective prosecution is not a valid trial defense.

The Court of Appeals has emphasized that a defendant’s claim of selective prosecution is

not a valid trial defense and is instead a constitutional claim for dismissal that should be addressed

before trial. “[I]n our State, the claim of unequal protection is treated not as an affirmative defense

to criminal prosecution or the imposition of a regulatory sanction but rather as a motion to dismiss

or quash the official action.” Matter of 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 693 (1979)

(citing People v. Goodman, 31 N.Y.2d 262, 268-69 (1972); People v. Utica Daw’s Drug Co., 16

A.D.2d 12, 15-18 (4th Dep’t 1962)). That is because “[a] claim of discriminatory enforcement

does not reach the issue of the guilt or innocence of the defendant.” Goodman, 31 N.Y.2d at 269;

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see also Utica Daw’s Drug Co., 16 A.D.2d at 15-16. Thus, “the claim of discriminatory

enforcement should not be considered as an affirmative defense to the criminal charge, to be

determined together with the issue of guilt by the trier of fact, but, rather, should be addressed to

the court before trial as a motion to dismiss the prosecution upon constitutional grounds.”

Goodman, 31 N.Y.2d at 268-69.

Here, defendant moved to dismiss the indictment on the ground that he was singled out for

prosecution for impermissible reasons, and sought discovery and an evidentiary hearing on that

claim. The People opposed, and the Court denied defendant’s motion. See Trump Omnibus

Decision 20-22. The presentation of any argument or evidence regarding defendant’s claims of

selective prosecution at trial would be irrelevant to any fact the jury needs to decide, and would

instead confuse and mislead the jury and needlessly prolong the trial. Indeed, the Court of Appeals

has expressly recognized—in directing that claims of discriminatory enforcement “should be

addressed to the court by a pretrial motion to dismiss”—that permitting the introduction at trial of

argument or evidence on selective prosecution risks “delay or confusion at trial.” Goodman, 31

N.Y.2d at 269; see People v. Decker, 218 A.D.3d 1026, 1042 (3d Dep’t 2023) (trial court properly

precluded defendant from “exploring a collateral issue concerning any potential bias of the

[Sheriff’s Department], as the probative value of such evidence was outweighed by the danger that

it could confuse or mislead the jury into deciding the case on issues beyond the evidence

presented”).

Argument regarding selective prosecution would improperly advance

a jury nullification defense.

Second, argument or evidence purporting to show selective prosecution should be excluded

because it would serve no purpose other than to advance an improper jury nullification defense.

As noted above, the Court of Appeals has long held that selective prosecution “does not reach the

31A

issue of the guilt or innocence of the defendant,” Goodman, 31 N.Y.2d at 269; and this Court

already considered and rejected defendant’s request for dismissal on the basis of claimed

constitutional violations. See Trump Omnibus Decision 20-22. Presenting argument or evidence

purporting to show that defendant was unfairly singled out for prosecution for political or other

improper reasons would thus serve no purpose other than to urge the jury to acquit even if the facts

establish each element of the charged offenses. But jury nullification “is not a legally sanctioned

function of the jury.” People v. Goetz, 73 N.Y.2d 751, 752 (1998).

The Court should thus preclude defendant from mounting “a ‘political’ defense . . . and

invit[ing] jury nullification by questioning the Government’s motives.” United States v. Rosado,

728 F.2d 89, 93 (2d Cir. 1984) (claims by the defendants that they were victims of political

persecution were “matters far beyond the scope of legitimate issues in a criminal trial”); see United

States v. Regan, 103 F.3d 1072, 1081 (2d Cir. 1997) (affirming district court’s decision to preclude

defendant from “introducing evidence at trial that the grand jury investigation was illegitimate,”

because “requir[ing] juries in perjury cases to evaluate the government’s motives for bringing

particular investigations . . . would add a new element to the crime”); see also Decker, 218 A.D.3d

at 1042.

The Court should make clear that any holding that precludes argument

regarding selective prosecution includes all versions of this claim that

defendant has advanced in his frequent public comments on this case.

The Court should specify that any holding that precludes defendant from presenting

argument and evidence of selective prosecution includes, but is not limited to, the following claims

that defendant has advanced in his frequent public comments on this case.

1. Argument or evidence purporting to show that the indictment is novel, unusual, or

unprecedented should be precluded because it would be irrelevant and would “improperly invite[]

the jury to make legal determinations,” which are “the exclusive province of the court.” United

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States v. Stewart, No. 03-cr-717 (MGC), 2004 WL 113506, at *1-2 (S.D.N.Y. Jan. 26, 2004)

(granting motion in limine to preclude defendants from arguing that one of the counts in the

indictment was “novel” or was “an unusual or unprecedented application of the securities laws”);

see United States v. Navarro, 651 F. Supp. 3d 212, 242 (D.D.C. 2023) (granting the government’s

motion in limine to exclude argument that the charges in that case were “infrequent” or

“unprecedented,” because those arguments “simply repackage Defendant’s selective prosecution

defense” and “are not relevant to any element of the charged offenses or any valid defense”); see

also Hearing Tr. 38-39, People v. The Trump Corporation, Ind. No. 1473/2021 (Sup. Ct. N.Y.

Cnty. Oct. 20, 2022) (granting the People’s motion in limine and holding that “the defendants are

precluded from remarking during jury selection and in their opening statements that the charges

are novel, unusual, or unprecedented”) (Ex. 5).

2. Argument or evidence regarding former Special Assistant District Attorney Mark

Pomerantz’s purported views on this prosecution, as related in his book titled People vs. Donald

Trump: An Inside Account, should be precluded because the selective prosecution claims defendant

has cited that book to support were properly rejected in the Court’s omnibus ruling, see Trump

Omnibus Decision 21-22; and because any hearsay statements in that book are irrelevant to

defendant’s guilt or innocence in any event.

3. Argument or evidence regarding defendant’s claims regarding the length of the People’s

investigation, his allegation of unconstitutional preindictment delay, and the related claim that this

prosecution was somehow timed to interfere with defendant’s presidential campaign, 10 should be

See, e.g., Hearing Tr. 12 (Feb. 15, 2024) (Defense counsel: “[I]t is completely election

interference to say, you are going to sit in this courtroom, in Manhattan, when there is no reason

for it.”); Former President Trump on Hush Money Case, C-SPAN (Feb. 15, 2024), https://www.cspan.org/video/?533626-1/president-trump-hush-money-case (Defendant: “It’s an election

33A

precluded because those assertions “simply repackage Defendant’s selective prosecution defense,”

Navarro, 651 F. Supp. 3d at 242; and could “confuse or mislead the jury into deciding the case on

issues beyond the evidence presented.” Decker, 218 A.D.3d at 1042; see also Trump Omnibus

Decision 3-6 (rejecting defendant’s motion to dismiss based on the claim of unconstitutional preindictment delay).

4. Argument or evidence referencing the purported motivations or personal and

professional backgrounds of the District Attorney or counsel for the People in this case should be

precluded because it does not support an affirmative defense to prosecution; does not reach the

issue of defendant’s guilt or innocence; risks confusing and misleading the jury; and improperly

invites jury nullification. See, e.g., Goodman, 31 N.Y.2d at 269; Decker, 218 A.D.3d at 1042;

Rosado, 728 F.2d at 93. Evidence and argument regarding “the motivation and conduct” of counsel

“are categorically irrelevant”; and “even if evidence of them had any slight relevance, it would be

substantially outweighed by the capacity of such evidence and lawyer arguments to confuse the

jury and create unfair prejudice.” Hart v. RCI Hospitality Holdings, Inc., 90 F. Supp. 3d 250, 271

(S.D.N.Y. 2015) (granting motion in limine); see also United States v. Xiong, 262 F.3d 672, 675

(7th Cir. 2001) (personal attacks on a party’s counsel are “reprehensible” and “detract from the

dignity of judicial proceedings”).

5. Argument, questions, or evidence regarding potential punishment or other consequences

of these proceedings 11 should be prohibited in front of the jury because it has no tendency to prove

interference case. Nobody’s ever seen anything like it in this country, it’s a disgrace. . . . They

want to keep me nice and busy so I can’t campaign so hard.”).

See, e.g., Trial Tr. 3628:3-6, People by James v. Trump, No. 452564/2022 (Sup. Ct. N.Y. Cnty.

Nov. 6, 2023) (Defendant: “And it is a shame what is going on. And we sit here all day, and it is

election interference because you want to keep me in this courthouse all day long, and let’s keep

going.”) (Ex. 20).

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any material fact. See Lewis, 69 N.Y.2d at 325; see also Shannon v. United States, 512 U.S. 573,

579 (1994) (“Information regarding the consequences of a verdict is . . . irrelevant to the jury’s

task.”); Navarro, 651 F. Supp. 3d at 242. Similarly, arguments or evidence that the charges in this

case are not serious or should be considered misdemeanors, as defendant has frequently asserted

in court filings and public statements, should likewise be precluded. Presenting argument or

eliciting evidence regarding the claimed seriousness of the offense or the effect of these

proceedings on defendant’s outside commitments is also improper because it invites nullification

and otherwise confuses the issues before the jury. See Navarro, 651 F. Supp. 3d at 242 (citing

United States v. Wade, 962 F.3d 1004, 1012 (7th Cir. 2020)); People v. Douglas, 178 Misc. 2d

918, 926-28 (Sup. Ct. Bronx Cnty. 1998).

6. Argument or evidence regarding alleged bias or purported motivations of the Court and

court staff should be precluded. Defendant prolifically attacks judges and court staff in his public

comments, 12 and impugned the motives of the court on repeated occasions in the courtroom during

court proceedings in the recent People by James v. Trump civil fraud trial. 13 Any such argument

here would be irrelevant and would improperly invite the jury to reach a verdict based on

something other than the evidence at trial. Rosado, 728 F.2d at 93.

See, e.g., People’s Mot. to Quash or for a Protective Order 3-4 (Nov. 9, 2023) (collecting

statements); People’s Mot. for a Protective Order 2-3, 7-12 (Apr. 24, 2023) (same).

See, e.g., Hearing Tr. 116, People by James v. Trump, No. 452564/2022 (Sup. Ct. N.Y. Cnty.

Jan. 11, 2024) (Defendant to the Court: “You have your own agenda, I can certainly understand

that. You can’t listen for more than one minute.”) (Ex. 19); Trial Tr. 3510:9-10, People by James

v. Trump, No. 452564/2022 (Sup. Ct. N.Y. Cnty. Nov. 6, 2023) (“This is a very unfair trial, very,

very.”) (Ex. 20); id. at 3558:5-3559:13 (“I think it’s fraudulent, the [court’s] decision. I think it’s

fraudulent. The fraud is on the Court, not on me. . . . And how do you do that? How do you rule

against somebody and call them a fraud, as the President of the United States, who did a great

job. . . . It’s a terrible thing you did. You knew nothing about me. You believed this political hack

back there, and that’s unfortunate.”) (Ex. 20); id. at 3628:7-8 (“And we have a very hostile Judge,

extremely hostile Judge, and it is sad.”) (Ex. 20).

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Motion to exclude evidence or argument regarding the federal government’s

purported views of Michael Cohen’s credibility.

Introduction.

Defendant may argue or seek to introduce evidence of the Justice Department’s purported

views regarding Michael Cohen’s credibility, including claims that he has lied to or withheld

evidence from federal investigators or prosecutors in the past. Although Cohen and other witnesses

may be subject to appropriate cross-examination on topics that properly go to their believability—

subject to the Court’s case-by-case assessment that such cross-examination is not irrelevant,

prejudicial, or confusing—a witness may not be impeached based on the federal government’s

claimed hearsay opinions regarding credibility or prior bad acts. The Court should thus exclude

argument or evidence regarding the Justice Department’s purported views of Cohen’s credibility.

Argument.

In multiple filings before this Court, defendant has cited Justice Department filings in

Cohen’s federal criminal case as evidence that Cohen lied to, made material false statements, or

declined to provide full information to federal investigators or prosecutors. See Def.’s Mem. Opp.

People’s Mot. to Quash 10 (Nov. 30, 2023) (citing the Justice Department’s 2019 opposition to

Cohen’s motion to reduce his sentence); Def.’s Mot. to Reargue 4-5 (Jan. 17, 2024) (citing the

Justice Department’s 2023 opposition to Cohen’s motion for termination of supervised release).

And in cross-examining Cohen during the People by James v. Trump civil fraud trial several

months ago, counsel for Trump offered into evidence the federal government’s 2018 sentencing

memo from the United States v. Cohen prosecution (without objection by the Attorney General),

and cross-examined Cohen on assertions by the federal government in that memo (again without

objection). See Trial Tr. 2284-87, People by James v. Trump, No. 452564/2022 (Sup. Ct. N.Y.

Cnty. Oct. 24, 2023). Because those observations by federal prosecutors are inadmissible hearsay

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and improper opinion evidence regarding credibility, the Court should exclude at this trial

argument or evidence purporting to describe the federal government’s views of Cohen’s

credibility.

Hearsay is any out-of-court statement offered for its truth. People v. Buie, 86 N.Y.2d 501,

505 (1995). Memoranda or pleadings from court files offered for their truth are routinely excluded

as inadmissible hearsay. See, e.g., 2641 Concourse Co. v. City Univ. of New York, 147 A.D.2d 379,

379 (1st Dep’t 1989), aff’g on op. below, 135 Misc. 2d 464, 465-66 (N.Y. Ct. Cl. 1987); Liberto v.

Worcester Mut. Ins. Co., 87 A.D.2d 477, 478-79 (2d Dep’t 1982); People v. Brann, 69 Misc. 3d 201,

207 (Sup. Ct. N.Y. Cnty. 2020). Evidence or argument based on the federal government’s legal

memoranda purporting to establish as true that Cohen lied to investigators or prosecutors should

thus be excluded as inadmissible hearsay.

Evidence or argument regarding federal prosecutors’ views of Cohen should separately be

excluded because it would be improper opinion evidence. Opinion evidence is inadmissible as a

general rule. See Prince, Richardson on Evidence § 7-101. Although there are exceptions to this

general exclusion, see Guide to N.Y. Evid. rule 7.03(1) (Opinion of Lay Witness), opinion

testimony regarding a witness’s credibility is not among those exceptions because “[c]redibility is,

as the cases have repeated and insisted from the dawn of the common law, a matter solely for the

jury.” People v. Williams, 6 N.Y.2d 18, 26 (1959).

Finally, the admission of evidence during cross-examination that purports to reflect federal

prosecutors’ views of Cohen’s credibility as indicated in federal court filings would be an improper

use of extrinsic evidence to challenge Cohen’s credibility. “The general rule is that a party may

not introduce extrinsic evidence on a collateral matter solely to impeach credibility.” Alvino, 71

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N.Y.2d at 248. The purposes of this rule are “judicial economy, to prevent needless multiplication

of issues in a case, and to insure that the jury is not confused with irrelevant evidence.” Id.

VI.

Motion to preclude argument regarding any alleged reliance on advice of counsel

unless and until defendant establishes a sufficient factual predicate at trial.

Introduction.

The People ask the Court to preclude improper argument, including in opening statements,

regarding any alleged reliance on advice of counsel unless and until defendant establishes a

sufficient factual predicate for the advice-of-counsel defense at trial.

Argument.

First, defendant has not shown the proper predicate for an advice-of-counsel defense. In

order for any defendant to employ that defense, there must be “sufficient facts in the record” to

establish that the defendant “honestly and in good faith sought the advice of counsel,” “fully and

honestly laid all the facts before his counsel,” and “in good faith and honestly followed counsel’s

advice.” United States v. Scully, 877 F.3d 464, 476 (2d Cir. 2017) (quoting United States v.

Colasuonno, 697 F.3d 164, 181 (2d Cir. 2012)). There is no evidence that would support any of

these facts. Defendant has identified Alan Garten, the Trump Organization’s Chief Legal Officer,

as a potential trial witness, but has not disclosed any statements from Mr. Garten pursuant to CPL

§ 245.20(4) or any other documents or records pursuant to CPL § 245.20(1)(o); and there is no

other evidence that would support an advice-of-counsel defense. 14

Second, New York law is clear that defendant’s “own testimony establishing reliance on

counsel’s advice [is] a prerequisite to . . . the proposed defense of advice of counsel.” People v.

The Court has directed defendant “to provide notice and disclosure of his intent to rely on the

defense of advice-of-counsel by March 11, 2024, and to produce all discoverable statements and

communications within his possession or control by the same date.” Decision & Order Regarding

Advice-of-Counsel Defense 6 (Feb. 7, 2024).

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Lurie, 249 A.D.2d 119, 124 (1st Dep’t 1998), leave denied, 92 N.Y.2d 900 (1998), habeas denied

sub nom. Lurie v. Wittner, 228 F.3d 113, 132-34 (2d Cir. 2000). Because defendant has no

obligation to testify at trial—and because there is no way to confirm whether he will do so before

he takes the stand—any argument that asserts reliance on an advice-of-counsel defense would be

improper before defendant has met the necessary prerequisite through his own testimony.

Because there is currently no factual predicate to assert the advice-of-counsel defense, the

Court should preclude any argument at trial suggesting otherwise—including in defendant’s

opening statement—until sufficient facts are established. See United States v. Lacey, No. CR-1800422, 2023 WL 4746562, at *6-7 (D. Ariz. July 24, 2023) (holding that if evidence to support an

advice-of-counsel defense has not been “disclosed or produced prior to opening statements,

Defendants are precluded from making such early pronouncements,” because “[t]o permit

Defendants to tell the jury” that they relied on the advice of counsel absent a sufficient factual

predicate “would present irrelevant evidence, could be factually misleading, would result in jury

confusion, and would prejudice the Government”); United States v. Charlemagne, No. 8:15-cr462, 2016 WL 11678620, at *2-3 (M.D. Fla. Sept. 2, 2016) (granting government’s motion in

limine to preclude reference to reliance on advice of counsel in opening statement, “without

prejudice to Defendant’s right to assert a good faith reliance on counsel defense if and when a

proper predicate is laid and the attorney-client privilege is expressly waived by Defendant”);

United States v. King, No. 3:06-cr-212, 2006 WL 3490805, at *8 (M.D. Fla. Dec. 1, 2006)

(describing oral order granting government’s motion in limine and ruling that “until Defendant

could lay the proper predicate, Defendant could not argue that he relied on an attorney’s advice”).

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VII.

Motion to exclude evidence or argument regarding legal defenses the Court has

already rejected.

The Court should exclude evidence or argument regarding legal defenses the Court has

already rejected.

The Court’s ruling on defendant’s omnibus motions rejected various legal defenses,

holding (among other things) that the People did not unconstitutionally delay bringing charges,

see Trump Omnibus Decision 3-6; that a federal offense is a valid object crime for charges of firstdegree falsifying business records, id. at 13-14; that New York Election Law § 17-152 applies to

the charged conduct and is not preempted, id. at 15-16; that this prosecution was not motivated by

an improper purpose, id. at 20-22; that the charges are timely under the statute of limitations, id.

at 22-23; and that there are no violations of grand jury secrecy that affected the integrity of these

proceedings, id. at 27-28.

Any argument or evidence that contradicts any of the Court’s prior orders in this case

should be excluded because questions of law are for the Court to decide. See United States v.

Gorham, 523 F.2d 1088, 1098 (D.C. Cir. 1975) (it is “the duty of the court to expound the law and

that of the jury to apply the law as thus declared to the facts as ascertained by them” (quoting Sparf

v. United States, 156 U.S. 51, 106 (1895))); Kirsh, 176 A.D.2d at 653. And the introduction of

evidence or argument regarding issues foreclosed by the Court’s prior decisions would confuse the

issues, mislead the jury, waste time, and cause undue delay.

VIII. Motion to introduce potential Molineux evidence.

The People respectfully request a pretrial ruling regarding the admissibility of three

categories of potential Molineux evidence. See People v. Ventimiglia, 52 N.Y.2d 350, 362 (1981);

People v. Molineux, 168 N.Y. 264 (1901).

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First, the Court should permit the introduction of evidence regarding defendant’s prior bad

acts that relate to or were committed in the course of the underlying conspiracy to promote his

election. This evidence is not Molineux evidence at all but is instead part of the res gestae of

defendant’s criminal conduct. To the extent the Court analyzes it under the Molineux doctrine, it is

clearly admissible because it is highly relevant to material, non-propensity issues regarding

defendant’s intent to defraud.

Second, the Court should permit the introduction of evidence regarding (a) the Access

Hollywood Tape, and (b) public allegations of sexual assault that followed the release of the Access

Hollywood Tape in the fall of 2016. This evidence is probative of defendant’s motive and intent, and

provides necessary background and context to explain defendant’s conduct to the jury.

Third, the Court should permit the introduction of evidence regarding defendant’s prior bad

acts that involve efforts to dissuade witnesses from cooperating with law enforcement—including

through pressure campaigns, public harassment, and retaliation—because such evidence shows

defendant’s consciousness of guilt and corroborates his intent.

Legal standard.

Under the Molineux rule, “evidence of uncharged crimes is inadmissible where its only

relevance is to show defendant’s bad character or criminal propensity,” because of the concern that

the jury will convict defendant based on his criminal predisposition rather than his involvement in

the charged misconduct. People v. Agina, 18 N.Y.3d 600, 603 (2012) (emphasis added). By contrast,

“when the evidence of the other crimes is relevant to an issue other than the defendant’s criminal

tendency,” the jury may properly consider such evidence to help flesh out its understanding of the

charges against the defendant. People v. Beam, 57 N.Y.2d 241, 250 (1982). Thus, evidence of a

defendant’s uncharged crimes or other bad acts is admissible if (1) it is “relevant to some material

issue in the case,” and (2) “the trial court determines in its discretion that the probative value of the

41A

evidence outweighs the risk of undue prejudice to the defendant.” People v. Frumusa, 29 N.Y.3d

364, 369 (2017) (internal quotation marks omitted).

Evidence of a defendant’s prior bad acts is generally relevant to a material issue when the

evidence is probative of a defendant’s “motive, intent, absence of mistake, identity, and common

scheme or plan.” Molineux, 168 N.Y. at 292-94. The categories that the Court of Appeals identified

in Molineux are “merely illustrative,” and “[t]here is no closed category of relevancy.” Prince,

Richardson on Evidence § 4-501 (citing cases). Accordingly, courts have also held that the People

may introduce evidence of uncharged conduct to, for example, “complete a witness’s narrative to

assist the jury in their comprehension of the crime,” People v. Mendez, 165 A.D.2d 751, 752 (1st

Dep’t 1990), or where the evidence is “inextricably interwoven with the narrative of events and was

necessary background to explain to the jury the relationship” between the parties. People v. Santiago,

295 A.D.2d 214, 215 (1st Dep’t 2002).

“Weighing the evidence’s probative value against its potential prejudice to the defendant is

a matter of discretion for the trial court.” People v. Morris, 21 N.Y.3d 588, 595 (2013) (internal

quotation marks omitted). To be sure, “almost all relevant, probative evidence” of prior bad acts

“will be, in a sense, prejudicial,” because “[e]vidence which helps establish a defendant’s guilt can

always be considered evidence that ‘prejudices’ him or her.” People v. Brewer, 28 N.Y.3d 271,

277 (2016); see also People v. Colavito, 87 N.Y.2d 423, 429 (1996). “But the probative value of

a piece of evidence is not automatically outweighed by prejudice merely because the evidence is

compelling.” Brewer, 28 N.Y.3d at 277. Instead, what makes Molineux testimony permissible “is

that the damage resulted from something other than [the evidence’s] tendency to prove

propensity.” Id.

42A

The Court should permit the introduction of evidence regarding defendant’s

prior bad acts that relate to or were committed in the course of the underlying

conspiracy to promote his election.

The People allege that defendant falsified business records as part of a criminal scheme to

conceal damaging information from the voting public in advance of the 2016 presidential election.

Trump Omnibus Decision 1-3, 6. To establish the intent-to-defraud element of the charged offenses

under Penal Law § 175.10, the People will introduce evidence at trial regarding defendant’s

agreement with others to influence the 2016 presidential election by identifying and purchasing

negative information about him to suppress its publication and benefit his electoral prospects, as

well as evidence regarding the steps that were taken to carry out that unlawful agreement.

In particular, and as described in the People’s prior filings in this case, the People will

present evidence regarding:

•

defendant’s August 2015 meeting at Trump Tower with David Pecker and Michael Cohen,

where they agreed that Pecker would help with defendant’s presidential campaign by

identifying and suppressing negative information about defendant, and by publishing

positive stories about defendant and negative stories about defendant’s competitors for the

election, see, e.g., Trump Omnibus Decision 1-2; People’s Omnibus Opp. 3; People’s

Statement of Facts ¶¶ 7-9;

•

the purchase of information from Dino Sajudin regarding an alleged out-of-wedlock child

Trump had fathered with one of his housekeepers, see People’s Omnibus Opp. 3-4, 8;

People’s Statement of Facts ¶¶ 10-11, 22-23;

•

the purchase of information regarding an alleged extramarital relationship between Karen

McDougal and defendant, see Trump Omnibus Decision 2; People’s Omnibus Opp. 4-6, 8;

People’s Statement of Facts ¶¶ 12-15, 22-23;

•

the purchase of information regarding an alleged sexual encounter between Stormy Daniels

and defendant, see Trump Omnibus Decision 2-3; People’s Omnibus Opp. 1, 6-8; People’s

Statement of Facts ¶¶ 3, 16-21; and

•

AMI’s publication of negative information about defendant’s competitors for the election,

as well as the publication of positive stories regarding defendant, see People’s Omnibus

Opp. 3; People’s Statement of Facts ¶ 9.

43A

As described below, this evidence is part of the res gestae of defendant’s criminal conduct and is not

properly considered Molineux evidence for that reason. For the avoidance of any doubt, however,

the Court may also hold that even if this evidence does constitute evidence of prior uncharged crimes

or bad acts under Molineux, it is admissible because it is inextricably interwoven with the narrative

of events and is probative of defendant’s intent, and because any prejudicial impact is outweighed

by its probative value.

Evidence regarding the formation and execution of defendant’s

conspiracy with others to influence the 2016 presidential election is not

Molineux because it is part of the res gestae of his criminal conduct.

Evidence regarding the Trump Tower agreement and the steps taken to implement that

agreement is direct evidence of an element of the offense: namely, defendant’s intent to defraud.

First-degree falsifying business records requires that defendant’s intent to defraud include “an

intent to commit another crime or to aid or conceal the commission thereof.” PL § 175.10. The

People allege that defendant intended to commit or conceal election law crimes, including

violations of Election Law § 17-152 and FECA. See Trump Omnibus Decision 12-16. The People

must establish only that defendant intended to commit or conceal another crime. Id. at 12.

As the Court has already recognized, the evidence described above—including evidence

of the August 2015 Trump Tower agreement; the payoffs to Sajudin, McDougal, and Daniels that

were made because of the Trump Tower agreement; and AMI’s publication of flattering stories

about defendant paired with denigrating stories about his opponents—supports a finding that

defendant intended to commit or conceal criminal conduct. See id. at 11-16. Thus, evidence

regarding the agreement to promote defendant’s election, as well as evidence of the steps taken to

execute that agreement, is not Molineux evidence at all but is instead part of the res gestae of

defendant’s criminal conduct.

44A

The Court of Appeals has explained that “the common thread in all Molineux cases is that

the evidence sought to be admitted concerns a separate crime or bad act committed by the

defendant. Frumusa, 29 N.Y.3d at 369-70. But “[w]here, as here, the evidence at issue is relevant

to the very same crime for which the defendant is on trial, there is no danger that the jury will draw

an improper inference of propensity because no separate crime or bad act committed by the

defendant has been placed before the jury.” Id. at 370. Evidence regarding the formation and

execution of defendant’s conspiracy with others to influence the 2016 presidential election is part

of the res gestae of his criminal conduct and is admissible without regard to the Molineux doctrine.

See, e.g., People v. Alfaro, 19 N.Y.3d 1075, 1076 (2012) (affirming decision below that evidence

was properly admitted where “the items were part of the ‘res gestae’ of the entire criminal

transaction”); People v. Delacruz, 199 A.D.3d 614, 614 (1st Dep’t 2021) (video of defendant

displaying a gun and threatening the victim “did not constitute Molineux evidence” because it was

instead “direct proof of defendant’s specific criminal intent”); People v. Robinson, 200 A.D.2d

693, 694 (2d Dep’t 1994) (affirming trial court’s admission of facts that were “essential

components of the res gestae”).

In the alternative, evidence regarding defendant’s conspiracy with

others to influence the presidential election is centrally relevant to

material issues in the case, and its probative value far outweighs any

prejudicial effect.

To the extent the Court concludes that evidence regarding the formation and execution of

defendant’s conspiracy with others to influence the 2016 presidential election may be Molineux

evidence, the Court should conclude that it is relevant to a material, non-propensity issue, and that

the probative value of the evidence far outweighs the risk of undue prejudice. See Frumusa, 29

N.Y.3d at 370 (encouraging the People to bring possible evidentiary issues to the attention of the

45A

court and defendant before trial, including where the Molineux doctrine may not need to be

applied).

First, evidence of defendant’s steps to conspire with others to help his candidacy by

purchasing and suppressing damaging information is “inextricably interwoven with the narrative of

events and [is] necessary background to explain to the jury” the criminal conduct defendant intended

to commit or conceal. Santiago, 295 A.D.2d at 215. Defendant is charged with falsely stating in the

business records of New York enterprises that his 2017 payments to Cohen were for legal services

rendered pursuant to a retainer agreement, when in fact those payments were instead

reimbursements for one part—the Stormy Daniels payoff—of the conspiracy to assist defendant’s

presidential campaign. Evidence regarding the Trump Tower agreement and the subsequent steps

to execute the plan that was hatched at that meeting—which included the Daniels payoff—thus

provides necessary background to explain the criminal conduct defendant intended to conceal

when he falsified the business records at issue in this prosecution. 15 See id.; see also, e.g., People

v. Vails, 43 N.Y.2d 364, 367-69 (1977) (Molineux evidence is relevant where it shows “a

concurrence of common features such that the acts proved can naturally be explained as caused by a

general plan of which each act is but a part”); People v. DeJesus, 127 A.D.3d 589, 590 (1st Dep’t

2015); People v. Finkelstein, 121 A.D.3d 615, 615-16 (1st Dep’t 2014). Indeed, the Court’s

opinion on defendant’s omnibus motions described this evidence “by way of background” when

Relatedly, the People will also present evidence that the $420,000 reimbursement amount to

Cohen was made up in part of a $50,000 request for reimbursement for expenses he claimed he

incurred. See Trump Omnibus Decision 3; People’s Omnibus Opp. 8; People’s Statement of Facts

¶ 25. The People will elicit testimony that the $50,000 expense claim related to Cohen’s payments

to a tech firm, RedFinch Solutions, to rig an online poll ranking business leaders in defendant’s

favor. Because the RedFinch expense is a component of the total reimbursement amount for the

payments at issue in this criminal prosecution, it is admissible for the same reasons described

above: it is part of the res gestae of defendant’s criminal conduct; and if the Court instead considers

it Molineux, it is inextricably interwoven with the narrative of events.

46A

introducing and describing the charged offenses. Trump Omnibus Decision 1-3; see also People

v. Till, 87 N.Y.2d 835, 837 (1995) (evidence of prior bad acts admissible to provide necessary

background information).

Second, and relatedly, this evidence is necessary to “complete the narrative” concerning

the charged crimes. Till, 87 N.Y.2d at 837; see also People v. Gines, 36 N.Y.2d 932, 932-33

(1975). Evidence of the Trump Tower agreement and the steps the participants took to execute

that agreement is all part of a single narrative that explains the illegal conduct defendant sought to

conceal when he falsely described the payments to Cohen as payments for legal services instead

of truthfully describing them as reimbursements for the Stormy Daniels payoff. See, e.g., Alfaro,

19 N.Y.3d at 1075 (holding that items were properly admitted where, “[e]ven assuming that the

subject items constituted prior uncharged crimes evidence under Molineux,” they “completed the

narrative of this particular criminal transaction”); People v. Flambert, 160 A.D.3d 605, 606 (1st

Dep’t 2018) (evidence admissible where it tends to “place the events in question in a believable

context”). Indeed, each of the transactions that was pursued as a result of the Trump Tower

agreement is so central to the conspiracy to influence the election that the conspiracy cannot be

accurately understood without reference to each of the other transactions—to omit any of the

episodes would be to present an incomplete and nonsensical narrative of the events that form the

basis for the charged conduct. This evidence is thus admissible because it is necessary to “flesh out

the narrative so there are no gaps in the story line provided to the jury.” People v. Leonard, 29

N.Y.3d 1, 4 (2017); People v. Green, 35 N.Y.2d 437, 442 (1974) (“[S]ome cases are sufficiently

complex that the jury would wander helpless, as in a maze, were the decisive occurrences not

placed in some broader, expository context.”).

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Third, this evidence is highly probative of defendant’s intent. In cases where the

defendant’s mental state cannot be “inferred from the commission of the act” alone, the Molineux

doctrine is especially flexible in permitting the introduction of evidence that tends to show that the

defendant acted with the requisite state of mind. Alvino, 71 N.Y.2d at 242-43 (citing cases). Cases

involving fraudulent intent are paradigmatic cases where Molineux evidence has often been allowed,

“because a fraudulent intent rarely can be established by direct evidence.” Matter of Brandon, 55

N.Y.2d 206, 211 (1982); see also People v. Rodriguez, 17 N.Y.3d 486, 489 (2011). Here, evidence

that defendant agreed with others to execute an illegal scheme to identify and purchase negative

information about him in order to suppress its publication and benefit his electoral prospects is

highly probative of defendant’s mental state when he later falsified business records to cover up

that scheme. See People v. Leeson, 12 N.Y.3d 823, 827 (2009) (Molineux evidence was relevant

to defendant’s state of mind when it “placed the charged conduct in context” (quoting People v.

Dorm, 12 N.Y.3d 16, 19 (2009))); People v. Ingram, 71 N.Y.2d 474, 480 (evidence is admissible

under the Molineux intent exception where it “makes the innocent explanation improbable”); see

also Trump Omnibus Decision 18-19 (evidence that defendant intended to pay money “to prevent

the publication of information that could have adversely affected his presidential aspirations” was

material to defendant’s intent to defraud).

Finally, evidence regarding the specific allegations defendant sought to suppress through

the Sajudin, McDougal, and Daniels payoffs is relevant to defendant’s motive. In each instance,

the allegations that defendant sought to suppress—that he had an out-of-wedlock child; that he had

an extramarital sexual relationship; that he had an extramarital sexual encounter with an adult film

actress—are allegations that defendant knew could damage his candidacy. See Trump Omnibus

Decision 1; People’s Omnibus Opp. 3-8; People Statement of Facts ¶¶ 10-23. Evidence regarding

48A

the nature of these allegations is critical evidence that supports defendant’s motive in making false

entries in the relevant business records in order to prevent disclosure of both the payoff scheme

and the underlying information. See, e.g., People v. Frankline, 27 N.Y.3d 1113, 1115 (2016)

(evidence of a prior assault admissible to show motive for a subsequent assault); Till, 87 N.Y.2d

at 837 (evidence of uncharged robbery was properly admitted where it “established a motive for

defendant’s attempt to kill or assault the off-duty police officer to avoid capture and punishment”);

People v. Johnson, 137 A.D.3d 811, 812 (2d Dep’t 2016) (Molineux testimony was properly

admitted where “it was relevant to and probative of defendant’s motive to commit the charged

crimes”).

The probative value of this evidence far outweighs any risk of “undue,” People v. Cass, 18

N.Y.3d 553, 560 (2012), or “unfair,” Frankline, 27 N.Y.3d at 1115, prejudice to defendant. As

explained above, evidence that defendant conspired with others to unlawfully influence the 2016

presidential election could not be more probative: it bears directly on material issues involving

defendant’s state of mind when he later falsified business records to conceal that conspiracy, and

separately provides necessary background to explain crucial context and complete the narrative

regarding the charged crimes.

By contrast, the risk of undue prejudice to defendant is low. This evidence is centrally

relevant to the jury’s understanding of the charged offenses. “When evidence of uncharged crimes

is relevant to some issue other than the defendant’s criminal disposition,” it is only when the

evidence “is actually of slight value when compared to the possible prejudice to the accused” that

it can be said its admission is an abuse of the trial court’s discretion. People v. Allweiss, 48 N.Y.2d

40, 47 (1979); see also Frumusa, 29 N.Y.3d at 373 (evidence “was not unduly prejudicial” where,

among other factors, “it was relevant to defendant’s larcenous intent”); Cass, 18 N.Y.3d at 563

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(evidence not unduly prejudicial where it had “a direct bearing” on the question of defendant’s

intent). And because the evidence is directly relevant to specific issues in the case, there is little

risk the jury will overestimate its significance. See Allweiss, 48 N.Y.2d at 46.

The Court should therefore hold that evidence of defendant’s prior acts is admissible where

it relates to or was committed in the course of the underlying conspiracy to promote his election.

The Court should permit the introduction of evidence regarding the Access

Hollywood Tape and subsequent public allegations by women that defendant

sexually assaulted them.

The Court should also permit the introduction of evidence regarding (1) the Access

Hollywood Tape; and (2) certain public allegations of sexual assault that followed the release of the

Access Hollywood Tape in the fall of 2016. Each of these categories of evidence is probative of

defendant’s motive and intent, and provides necessary background information for the jury that

places the charged offenses in context.

The Access Hollywood Tape.

On October 7, 2016, about one month before the 2016 presidential election, the

Washington Post published a video recorded in 2005 that depicted defendant saying to the host of

Access Hollywood: “You know I’m automatically attracted to beautiful – I just start kissing them.

It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can

do anything. . . . Grab ’em by the pussy. You can do anything.” Carroll v. Trump, 660 F. Supp. 3d

196, 200-01 (S.D.N.Y. 2023) (quoting the Access Hollywood Tape). In response, defendant issued

public statements describing the tape as “locker room banter,” Ex. 21, and drawing a distinction

between words (which he admitted saying) and conduct (which he denied). 16

Both the Access Hollywood Tape and defendant’s statements explaining his remarks on that

tape (by distinguishing between words and conduct) are contained in video exhibits which the

People will submit to the Court if the Court would like to review them in adjudicating this motion.

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The Access Hollywood Tape is centrally relevant to critical issues in the case, and its

probative value outweighs any risk of undue prejudice. The evidence at trial will show that after

the release of the Access Hollywood Tape one month before the presidential election, defendant

and his campaign staff were deeply concerned that the tape would harm his viability as a candidate

and reduce his standing with female voters in particular. The release of the tape—and the

accompanying concerns about its possible impact on the election—are thus directly related to the

Stormy Daniels payoff, which was executed just a few weeks later. See People’s Omnibus Opp.

6-7, 55; People’s Statement of Facts ¶¶ 16-21. The Access Hollywood Tape is such a central

component of defendant’s conspiracy to influence the election that it is “inextricably interwoven

with the narrative of events and [is] necessary background to explain to the jury” why the Daniels

payoff was made when it was. Santiago, 295 A.D.2d at 215; see also Vails, 43 N.Y.3d at 367-69;

Green, 35 N.Y.2d at 442. Omitting the Access Hollywood Tape would leave counterfactual and

artificial “gaps in the story line presented to the jury,” Leonard, 29 N.Y.3d at 4; the tape is necessary

to “complete[] the narrative of this particular criminal transaction,” Alfaro, 19 N.Y.3d at 1075, and

“place the events in question in a believable context,” Flambert, 160 A.D.3d at 606.

The Access Hollywood Tape is also relevant to defendant’s intent and motive at the time

he and his confederates executed the Daniels payoff and when he later sought to conceal it. See

Trump Omnibus Decision 18-19. Evidence regarding the tape and its impact on the campaign

supports the conclusion that defendant wanted to avoid further damaging disclosures immediately

before the election, which makes other, “innocent explanation[s]” for the payoff and coverup

“improbable.” Ingram, 71 N.Y.2d at 480. The tape is highly relevant to defendant’s motive for the

same reason—it supports the conclusion that he suppressed the Daniels story and then concealed

the payoff because he believed additional disclosures about an alleged sexual encounter with an

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adult film actress, following immediately on the heels of the Access Hollywood Tape, would cost

him votes. Frankline, 27 N.Y.3d at 1115; Till, 87 N.Y.2d at 837. Indeed, the release of the Access

Hollywood Tape was so monumental to the campaign that the first draft of the non-disclosure

agreement with Stormy Daniels was penned within four days. The motivation to complete the

Daniels non-disclosure agreement cannot be understood without reference to the desperation

facing defendant and his campaign in the wake of the tape’s release.

The probative value of the Access Hollywood Tape outweighs any risk of undue prejudice.

The Access Hollywood Tape and its impact on the campaign could not be more relevant to the

Daniels payoff and subsequent coverup. As the Court of Appeals has explained, “[i]f the evidence

has substantial probative value and is directly relevant to the purpose—other than to show criminal

propensity—for which it is offered, the probative value of the evidence outweighs the danger of

prejudice and the court may admit the evidence.” Cass, 18 N.Y.3d at 560. And the prejudicial

impact is low because the evidence is directly relevant to defendant’s intent. See id. at 563; see

also Frumusa, 29 N.Y.3d at 373. Indeed, a federal court recently held in a defamation case against

Trump that the Access Hollywood Tape was admissible under Rule 404(b) of the Federal Rules of

Evidence (the federal-law provision for “Other Crimes, Wrongs, or Acts”) because it was relevant

to the defendant’s intent, and was not unduly prejudicial because “[t]here would be nothing

inherently ‘unfair’ in receiving evidence that is uniquely probative” of defendant’s state of mind.

Carroll v. Trump, No. 20-cv-7311 (LAK), 2024 WL 97359, at *9-11 (S.D.N.Y. Jan. 9, 2024).

Public allegations of sexual assault that followed the release of the Access

Hollywood Tape in the fall of 2016.

About five days after the Access Hollywood Tape was published, and following

defendant’s public explanation that the tape reflected only banter, not behavior, several women

alleged in news reports that defendant had sexually assaulted them in the past. See Megan Twohey

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& Michael Barbaro, Two Women Say Donald Trump Touched Them Inappropriately, N.Y. Times,

Oct. 12, 2016 (Ex. 22); Natasha Stoynoff, Physically Attacked by Donald Trump—A PEOPLE

Writer’s Own Harrowing Story, People Magazine, Oct. 12, 2016 (Ex. 23). In public comments at

campaign rallies and on social media, defendant denied the allegations of sexual assault and

asserted that the allegations were being made to harm—and were harming—his standing with

voters in general and women voters in particular. 17 Ex. 24.

As with the Access Hollywood Tape, evidence of these allegations and defendant’s public

response provides critical context for the charges the jury will consider, and is manifestly relevant

to defendant’s intent and motive in paying to silence Stormy Daniels and then concealing the

payoff. As noted above, defendant’s public comments in reaction to the allegations published on

October 12, 2016 in the New York Times and People Magazine show his awareness and concern

that the allegations risked his candidacy by hurting his standing with female voters. E.g., Ex. 24 at

1 (“Nothing ever happened with any of these women. Totally made up nonsense to steal the

election. Nobody has more respect for women than me!”); id. at 2 (“Polls close, but can you believe

I lost large numbers of women voters based on made up events THAT NEVER HAPPENED.

Media rigging election!”); id. at 3 (“Can’t believe these totally phony stories, 100% made up by

women (many already proven false) and pushed big time by press, have impact!”). Thus, this

evidence not only provides important context and background, but also explains defendant’s intent

and motive in arranging the Stormy Daniels hush payment and subsequent coverup, because

further disclosures of alleged sexual misconduct—and especially the disclosure of an alleged

Defendant’s comments at campaign rallies are contained in excerpted video exhibits which the

People will submit to the Court if the Court would like to review them in adjudicating this motion.

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sexual liaison with an adult film actress just weeks before Election Day—seriously risked his

electoral prospects.

The risk of undue prejudice is low. First, this evidence would not be admitted to show that

defendant in fact sexually assaulted the women who accused him of doing so; there is thus no

propensity issue at play. See Agina, 18 N.Y.3d at 603 (Molineux evidence inadmissible “where its

only relevance is to show defendant’s bad character or criminal propensity” (emphasis added)). And

appropriate limiting instructions would make clear to the jury that this evidence should be

considered only for the fact that the allegations were made, not as evidence of defendant’s

character or as proof that the allegations are true. See People v. Hernandez, 103 A.D.3d 433, 434

(1st Dep’t 2013) (prejudicial effect of Molineux evidence was minimized by the court’s limiting

instructions); see also People v. Morris, 21 N.Y.3d 588, 598 (2013) (jurors are presumed to follow

a trial court’s limiting instructions). Second, the People propose to admit evidence of only three

accusations of sexual assault (the accusations that were reported in the New York Times and

People Magazine articles published on October 12, 2016). There are public reports that more than

dozen women accused defendant of sexual assault in the weeks following the release of the Access

Hollywood Tape; 18 evidence of just a select few instances of those allegations—which defendant

specifically referenced on the campaign trail in acknowledging the effect on his campaign—is not

cumulative. Cf. People v. Rodriguez, 193 A.D.3d 554, 556 (1st Dep’t 2021) (introducing a

“significant quantum of evidence” is more likely to cause undue prejudice). Third, the risk of unfair

prejudice is low where the allegations reported in the New York Times and People Magazine

articles are not “any more sensational or disturbing” than other evidence that will be before the

See, e.g., Lindsay Kimble, Everything You Need to Know About the Sexual Assault Allegations

Against Donald Trump Before Election Day, People Magazine, Nov. 1, 2016,

https://people.com/politics/ every-sexual-assault-accusation-against-donald-trump/.

54A

jury. United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990); see United States v. Siegel,

717 F.2d 9, 16-17 (2d Cir. 1983).

The Court should permit the introduction of evidence regarding defendant’s

efforts to dissuade witnesses from cooperating with law enforcement,

including through pressure campaigns, public harassment, and retaliation.

The Court should also permit the introduction of evidence regarding defendant’s attempts

to dissuade witnesses from cooperating with law enforcement because such evidence shows

defendant’s consciousness of guilt and corroborates his intent. This evidence falls into four

categories:

•

First, after the FBI executed a search warrant on Cohen’s residences, office, and electronic

devices in April 2018, defendant and others engaged in a public and private pressure

campaign to ensure that Cohen did not cooperate with the federal investigation into

campaign finance violations related to the McDougal and Daniels payoffs. See People’s

Statement of Facts ¶¶ 35-40. The People will introduce evidence of this pressure campaign

and will elicit testimony regarding how these statements affected a witness.

•

Second, defendant has singled out two of the People’s witnesses—Michael Cohen and

Stormy Daniels—with harassing comments on social media and in other public statements.

The People will introduce evidence of these statements, and will elicit testimony from

witnesses regarding the threats and harassment they received after defendant targeted them

with these and other public attacks.

•

Third, in April 2023, eight days after he was arraigned in this case, defendant sued Cohen

in federal court in Florida seeking $500 million in damages based on allegations that Cohen

“spread falsehoods” about defendant. The People will elicit witness testimony regarding

that lawsuit and its effect on the witness.

•

Fourth, the People will introduce evidence of past comments by defendant endorsing

aggressive attacks on one’s perceived opponents. For example, in one book, defendant

wrote: “When somebody hurts you, just go after them as viciously and as violently as you

can.” 19 In another book, defendant wrote: “When you are wronged, go after those people

because it is a good feeling and because other people will see you doing it.” 20

Donald J. Trump, Trump: How to Get Rich 138 (2004).

Donald J. Trump, Think Big: Make it Happen in Business and in Life 192 (2007).

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This evidence is relevant to material, non-propensity issues in the case. Evidence of the

pressure campaign against Cohen is probative of both defendant’s effort to deter Cohen from

cooperating with law enforcement, and of defendant’s steps to intimidate Cohen and retaliate against

him once he began doing so. See, e.g., Report on the Investigation into Russian Interference in the

2016 Presidential Election, Vol. II of II, at 154-56 (Mar. 2019) (“The evidence concerning this

sequence of events could support an inference that the President used inducements in the form of

positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and

intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen

began cooperating.”), https://www.justice.gov/storage/report_volume2.pdf. The Court of Appeals

has long recognized that efforts to coerce or harass witnesses can show consciousness of guilt. See

People v. Bennett, 79 N.Y.2d 464, 469-70 (1992); People v. Shilitano, 218 N.Y. 161, 179 (1916)

(evidence of “an effort to coerce witnesses and suppress evidence against the defendant”

admissible to prove consciousness of guilt). And evidence of post-crime conduct that reflects a

defendant’s consciousness of guilt—including efforts at coercion, threats, or intimidation of

witnesses—is admissible under the Molineux doctrine for that reason. See, e.g., People v. Parilla,

211 A.D.3d 1609, 1610 (4th Dep’t 2022) (efforts to bribe witness showed consciousness of guilt

and were admissible under Molineux); People v. Cotton, 184 A.D.3d 1145, 1146 (4th Dep’t 2020)

(evidence of tampering or witness intimidation admissible under Molineux to show consciousness

of guilt).

The same is true of the evidence that defendant has targeted Cohen and Daniels on social

media and in other public statements with persistent, harassing, and denigrating comments. See

Cotton, 184 A.D.3d at 1146; People v. Pitt, 170 A.D.3d 1282, 1284 (3d Dep’t 2019) (threatening

post-crime comments showed consciousness of guilt and were admissible under Molineux); People

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v. Leitzsey, 173 A.D.2d 488, 488-89 (2d Dep’t 1991) (same). And evidence that defendant sued

Cohen just days after defendant’s arraignment in this matter—and sought enormous money

damages for claimed injuries based in part on Cohen’s testimony before the grand jury—likewise

is relevant to material issues in this case because it supports consciousness of guilt and therefore

corroborates defendant’s intent in connection with the charged conduct. See, e.g., People v. Lumaj,

298 A.D.2d 335, 335 (1st Dep’t 2002) (evidence of efforts to deter a witness from testifying was

“clearly admissible as it demonstrated defendant’s consciousness of guilt”); People v. De Vivo,

282 A.D.2d 770, 772 (3d Dep’t 2001) (evidence of threats, retaliation, and efforts to get witnesses

to change their testimony “is highly probative and was properly admitted as it was indicative of

defendant’s consciousness of guilt”) (citing cases). The final category of evidence—defendant’s

prior statements that perceived opponents should be attacked “as viciously and as violently” as

possible—is material and relevant for a non-propensity purpose because it provides context for

witness testimony the People will elicit regarding the effect defendant’s public attacks and

harassment had on them. 21 See Flambert, 160 A.D.3d at 606.

Given the direct connection between this consciousness-of-guilt evidence and defendant’s

intent, its probative value outweighs the danger of any unfair prejudice. See Lumaj, 298 A.D.2d at

335; Cotton, 184 A.D.3d at 1146; see generally Cass, 18 N.Y.3d at 560. An appropriate limiting

instruction that the jury is to consider this evidence only for consciousness of guilt and

The evidence mentioned in this paragraph—defendant’s public harassment of Cohen and

Daniels; his $500 million lawsuit against Cohen; and his prior written statements endorsing

retaliation against opponents—likely is not Molineux at all, and its admission at trial should be

assessed just like any other evidence. See People v. Hamilton, 73 A.D.3d 408, 409 (1st Dep’t

2010). The People include this evidence here for the avoidance of any doubt and to the extent the

Court believes the Molineux doctrine does apply. See Frumusa, 29 N.Y.3d at 370.

57A

corroboration of defendant’s intent—not to show defendant’s bad character or criminal

propensity—will further reduce any risk of undue prejudice. See Parilla, 211 A.D.3d at 1610.

Dated:

February 22, 2024

Respectfully submitted,

/s/ Matthew Colangelo

Matthew Colangelo

Christopher Conroy

Susan Hoffinger

Becky Mangold

Joshua Steinglass

Assistant District Attorneys

New York County District Attorney’s Office

1 Hogan Place

New York, NY 10013

212-335-9000

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

THE PEOPLE OF THE STATE OF NEW YORK,

Index No. 71543-23

- against DONALD J. TRUMP,

Defendant.

PRESIDENT DONALD J. TRUMP’S MOTIONS TO EXCLUDE EVIDENCE AND

FOR AN ADJOURNMENT BASED ON PRESIDENTIAL IMMUNITY

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 3

DISCUSSION ................................................................................................................................. 5

President Trump Is Immune From State Prosecution Based On Official Acts....................... 5

The Executive Vesting Clause And Supremacy Clause Require Presidential

Immunity From State Prosecution For Official Acts ....................................................... 5

The Impeachment Judgment Clause Confirms Presidential Immunity ............................ 8

The President’s Unique Role Requires Immunity From Prosecution Based On

Official Acts ..................................................................................................................... 9

“The Presuppositions Of Our Political History” Support Presidential Immunity From

Prosecution For Official Acts ......................................................................................... 10

Analogous Immunity Doctrines Support Presidential Immunity From Prosecution Based

On Official Acts ............................................................................................................. 13

Public Policy Considerations Support Presidential Immunity From Prosecution.......... 16

II.

The Court Should Adjourn The Trial Until The Supreme Court Decides

Trump v. United States...................................................................................................... 18

III.

The People Must Be Precluded From Offering Evidence Of President Trump’s Official

Acts ................................................................................................................................... 20

“Official Acts” Include Presidential Decisions On The “Outer Perimeter”................... 20

The Court Must Preclude Evidence Of Official Acts .................................................... 21

CONCLUSION ............................................................................................................................. 24

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INTRODUCTION

President Donald J. Trump respectfully submits this motion (1) for an adjournment of the

trial pending review of the scope of the presidential immunity doctrine in Trump v. United States,

which the Supreme Court agreed to hear on February 28, 2024, and is scheduled to be argued

before the Court on April 25, 2024; and (2) to preclude evidence of President Trump’s official acts

at trial based on presidential immunity.

The Court must preclude the People from offering evidence at trial of President Trump’s

official acts as the Commander in Chief, which the People have not yet specified as the existing

trial date approaches. However, in motions in limine recently filed on February 22, 2024, the

People argued that they should be permitted to offer evidence at trial concerning a fictitious socalled “pressure campaign” by President Trump in 2018 relating to Michael Cohen. People’s MILs

at 50. Although the People did not describe the evidence they intend to offer in detail, it appears

that the evidence includes public statements by President Trump and posts to his official Twitter

account, as well as testimony from unspecified witnesses. See id. The People’s recent proffer

implicates presidential immunity because President Trump was President of the United States at

the time of those actions in 2018. He made at least some of the 2018 statements at issue—and

potentially all of them, though it is hard to be sure in light of the People’s vague in limine

description—in his official capacity as the nation’s Chief Executive. Moreover, while it is clear

that the People intend to offer documents and testimony relating to the period in 2017 when

President Trump was in office, they have not provided sufficiently specific notice of the nature

and extent of that evidence to allow President Trump or the Court to distinguish between personal

and official acts.

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Such distinctions are necessary and complex, as illustrated by the D.C. Circuit’s recent

guidance in Blassingame v. Trump, where the panel emphasized that President Trump is entitled

to “every opportunity” to present this defense. 87 F.4th 1, 22 (D.C. Cir. 2023). This area of law

is evolving in real time. Specifically, on February 28, 2024, the Supreme Court granted certiorari

with respect to the following question: “Whether 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.” Trump v. United States, 2024 WL 833184 (Feb. 28, 2024).

In addition, on March 4, 2024, a unanimous Supreme Court held that the Colorado Supreme

Court had erred by excluding President Trump from Colorado’s 2024 presidential primary ballot.

Trump v. Anderson, 2024 WL 899207, at *2 (Mar. 4, 2024). The Anderson Court reasoned, in

part, that states’ “power over governance . . . does not extend to federal . . . candidates.” Id. at *3

(emphasis in original). The Court’s emphasis on federalism principles further supports the timing

of this motion, and is relevant to the application of presidential immunity because “any effort . . .

to retaliate against a President for official acts” would be “an unconstitutional attempt to

‘influence’ a superior sovereign ‘exempt’ from such obstacles.” Trump v. Vance, 140 S. Ct. 2412,

2428 (2020) (citing McCulloch v. Maryland, 4 Wheat. 316, 417 (1819)).

Therefore, President Trump respectfully submits that an adjournment of the trial is

appropriate to await further guidance from the Supreme Court, which should facilitate the

appropriate application of the presidential immunity doctrine in this case to the evidence the People

intend to offer at trial. Following the Supreme Court’s guidance, and consistent with the remand

in Blassingame, the Court should hold a hearing outside the presence of the jury to identify and

preclude documentary and testimonial official-acts evidence based on presidential immunity.

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BACKGROUND

As far as we can gather from the description of the so-called “pressure campaign” in the

People’s motions in limine, there are several types of evidence that implicate the concept of official

acts for purposes of presidential immunity, and therefore must be precluded.

First, President Trump used his Twitter account, which was an official communications

channel during his Presidency, to communicate with the public regarding matters of public

concern. In 2018, such matters included Michael Cohen after the FBI executed search warrants

targeting him. For example:



On April 21, 2018, President Trump posted messages on his Twitter account that

included the following: “Michael is a businessman for his own account/lawyer who I

have always liked & respected. Most people will flip if the Government lets them out

of trouble, even if . . . it means lying or making up stories. Sorry, I don’t see Michael

doing that despite the horrible Witch Hunt and the dishonest media.” Ex. 1.



On May 3, 2018, President Trump posted messages on his Twitter account that included

the following: “Mr. Cohen, an attorney, received a monthly retainer, not from the

campaign and having nothing to do with the campaign, from which he entered into,

through reimbursement, a private contract between two parties, known as a nondisclosure agreement, or NDA. These agreements are . . . very common among

celebrities and people of wealth. . . . Money from the campaign, or campaign

contributions, played no rol[e] in this transaction.” Ex. 2.



On August 22, 2018, President Trump posted a message on his Twitter account that

included the following: “I feel very badly for Paul Manafort and his wonderful family.

‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure

on him and, unlike Michael Cohen, he refused to ‘break’ – make up stories in order to

get a ‘deal.’ Such respect for a brave man.” Ex. 3.

Second, President Trump made public statements on official premises and during media

appearances. For example:



On April 5, 2018, during statements to reporters on board Air Force One, President

Trump directed reporters to “ask Michael Cohen” regarding the public allegations and

added, “Michael is my attorney. And you’ll have to ask Michael Cohen.” Ex. 4.

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

On April 26, 2018, during a telephone call aired on Fox & Friends, President Trump

explained that Cohen “has a percentage of my overall legal work – a tiny, tiny little

fraction. But Michael would represent me on some things. . . . [L]ike with this crazy

Stormy Daniels deal he represented me. And, you know, from what I see he did

absolutely nothing wrong. There were no campaign funds going into this.” Ex. 5.



On August 23, 2018, during an interview on Fox & Friends, President Trump stated:

“If you look at President Obama, he had a massive campaign violation, but he had a

different Attorney General and they viewed it a lot differently, you know. We have

somebody that they seem to like to go after a lot of Republicans, but he settled his very

easily. In fact I put that out fairly recently. So Obama had it, other people have it,

almost everybody that runs for office has campaign violations, but what Michael Cohen

pled to weren’t even campaign related, they weren’t crimes.” Ex. 6.

Third, the People seem to want to offer documentary evidence that reflects official acts.

This category appears to include a form that President Trump submitted to the U.S. Office of

Government Ethics in 2018. Ex. 7.

Fourth, it appears that the People will seek to elicit testimony at trial relating to official

acts. For example,

is on the People’s witness list as of January 29, 2024. During

grand jury testimony,

. Tr. 698.

Tr. 699.

. Tr. 704-06.

Similarly,

. Tr. 890-91, 916-17, 919-20. According to

Tr. 919.

. Tr. 924.

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DISCUSSION

President Trump Is Immune From State Prosecution Based On Official Acts

For the reasons set forth below, President Trump is entitled to immunity from prosecution

based on evidence of official acts that he undertook during his first term in Office.1

The Executive Vesting Clause And Supremacy Clause Require Presidential

Immunity From State Prosecution For Official Acts

Under the Executive Vesting Clause of Article II, § 1, state courts and prosecutors lack

authority to sit in judgment over a President’s official acts. The Executive Vesting Clause provides

that “[t]he executive Power shall be vested in a President of the United States of America.” U.S.

CONST. art. II, § 1, cl. 1. Just as the Executive Vesting Clause prevents an Article III court from

arrogating the “executive power” to itself based on the separation of powers,2 state authorities

The D.C. Circuit recently erred in finding that President Trump was not entitled to presidential

immunity in connection with the set of federal criminal charges pending in the District of

Columbia. See United States v. Trump, 91 F.4th 1173, 1200 (D.C. Cir. 2024). The D.C. Circuit’s

analysis is not persuasive for many of the reasons discussed below and, as noted, will be reviewed

by the Supreme Court pursuant to the February 28 grant of certiorari. Trump v. United States,

2024 WL 833184 (Feb. 28, 2024).

See, e.g., Clinton v. Jones, 520 U.S. 681, 719 (1997) (Breyer, J., concurring) (reasoning that there

is an “unbroken historical tradition . . . implicit in the separation of powers that a President may

not be ordered by the Judiciary to perform particular Executive acts” (cleaned up)); Chi. & S. Air

Lines v. Waterman S.S. Corp., 333 U.S. 103, 112 (1948) (reasoning that “whatever of this order

emanates from the President is not susceptible of review by the Judicial Department”); Mississippi

v. Johnson, 71 U.S. 475, 501 (1866) (“[T]his court has no jurisdiction of a bill to enjoin the

President in the performance of his official duties.”); In re Trump, 958 F.3d 274, 297-98 (4th Cir.

2020), cert. granted, judgment vacated sub nom. Trump v. D.C., 141 S. Ct. 1262 (2021)

(Wilkinson, J., dissenting) (“Since Mississippi, the federal courts have continued this practice

without exception and have not sustained a single injunction against the President in his official

capacity.” (italics in original)); Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (“With

regard to the President, courts do not have jurisdiction to enjoin him, and have never submitted the

President to declaratory relief.”) (cleaned up). This is also the consistent litigation position of the

U.S. Department of Justice. See, e.g., Reply Brief for Pet’r at 4-6, In re Trump, No. 18-2486 (4th

Cir. Feb. 21, 2019) (invoking “the separation-of-powers principle that ‘courts have no jurisdiction

of a bill to enjoin the President in the performance of his official duties’”) (quoting Mississippi, 71

U.S. at 501) (cleaned up); DOJ Mem. at 25, ECF No. 28, Missouri v. Biden, No. 21 Civ. 287 (E.D.

Mo. June 4, 2021) (same).

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purporting to dictate how the President must exercise the executive power violate the Supremacy

Clause and federalism principles. See, e.g., Clinton v. Jones, 520 U.S. 681, 691 n.13 (1997)

(reasoning that “any direct control by a state court over the President, who has principal

responsibility to ensure that those laws are ‘faithfully executed,’ Art. II, § 3, may implicate

concerns that are quite different from the interbranch separation-of-powers questions addressed

here,” such as under “the Supremacy Clause”); Mayo v. United States, 319 U.S. 441, 445 (1943)

(“[T]he activities of the Federal Government are free from regulation by any state.”); see also

United States v. McLeod, 385 F.2d 734, 751-52 (5th Cir. 1967) (“Both the Supremacy Clause and

the general principles of our federal system of government dictate that a state grand jury may not

investigate the operation of a federal agency. . . . [T]he investigation . . . is an interference with the

proper governmental function of the United States . . . [and] an invasion of the sovereign powers

of the United States of America.”).

In Marbury v. Madison, Chief Justice Marshall described the presidential immunity

doctrine as foundational and self-evident. “By the constitution of the United States, the President

is invested with certain important political powers, in the exercise of which he is to use his own

discretion, and is accountable only to his country in his political character, and to his own

conscience.” Marbury v. Madison, 5 U.S. 137, 165-66 (1803). When it comes to the President’s

official acts, “whatever opinion may be entertained of the manner in which executive discretion

may be used, still there exists, and can exist, no power to control that discretion.” Id. at 166.

“[N]othing can be more perfectly clear than that” the President’s discretionary “acts are only

politically examinable.” Id. “Questions . . . which are, by the constitution and laws, submitted to

the executive, can never be made in this court.” Id. at 170. The President’s official acts, therefore,

“can never be examinable by the courts.” Id. at 166 (emphasis added).

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The Supremacy Clause prohibits state and local officials from using their powers to “defeat

the legitimate operations” of the national government. McCulloch v. Maryland, 17 U.S. 316, 427

(1819). States may not impede “the measures of a government created by others as well as

themselves, for the benefit of others in common with themselves.” Id. at 435. The McCulloch

court reasoned:

If we apply the principle for which the state of Maryland contends [regarding state

taxation], to the constitution, generally, we shall find it capable of changing totally the

character of that instrument. We shall find it capable of arresting all the measures of the

government, and of prostrating it at the foot of the states.

Id. at 432. The McCulloch Court rejected that possibility.

In 1833, citing Marbury, Justice Story wrote that “[i]n the exercise of his political powers

[the President] is to use his own discretion, and is accountable only to his country, and to his own

conscience. His decision, in relation to these powers, is subject to no control; and his discretion,

when exercised, is conclusive.” 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES, ch. 37, § 1563 (1833), https://lonang.com/library/reference/story-commentaries-usconstitution/sto-337. “It is incompatible with his constitutional position that [the President] be

compelled personally to defend his executive actions before a court.” Franklin v. Massachusetts,

505 U.S. 788, 827 (1992) (Scalia, J., concurring in part and concurring in the judgment); cf. Martin

v. Mott, 25 U.S. 19, 32-33 (1827) (Story, J.) (holding that, “[w]hen the President exercises an

authority confided to him by law,” his official conduct cannot “be passed upon by a jury” or “upon

the proofs submitted to a jury”); see also Johnson v. Maryland, 254 U.S. 51, 57 (1920) (reasoning

that “immunity of the instruments of the United States from state control in the performance of

their duties” prohibits prosecution of a post officer for violating a state license law); Ohio v.

Thomas, 173 U.S. 276, 284 (1899) (prohibiting state criminal prosecution of federal officer for

violating food regulations because “in the performance of that duty he was not subject to the

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direction or control of the legislature of Ohio”); In re Tarble, 80 U.S. 397, 409 (1871) (reasoning

that it is “manifest that the powers of the National government could not be exercised with energy

and efficiency at all times, if its acts could be interfered with and controlled for any period by

officers or tribunals of another sovereignty”); McClung v. Silliman, 19 U.S. 598, 605 (1821)

(holding that state court cannot mandamus an officer of the United States because that officer’s

“conduct can only be controlled by the power that created him”).

The Impeachment Judgment Clause Confirms Presidential Immunity

Presidential immunity from criminal prosecution for official acts draws support directly

from the text of the Constitution, as the Impeachment Judgment Clause states that a President

cannot be criminally prosecuted unless he is first impeached and convicted by the U.S. Senate.

The Impeachment Judgment Clause provides that “Judgment in Cases of Impeachment

shall not extend further than to removal from Office . . . but the Party convicted shall nevertheless

be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S.

CONST. art. I, § 3, cl. 7 (emphasis added). Because the Constitution specifies that only “the Party

convicted” by trial in the Senate may be “liable and subject to Indictment, Trial, Judgment and

Punishment,” id., it plainly indicates that a President who is not convicted may not be subject to

criminal prosecution. SCALIA & GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS,

§ 10, at 107 (2012) (“When a car dealer promises a low financing rate to ‘purchasers with good

credit,’ it is entirely clear that the rate is not available to purchasers with spotty credit.”).

This was the understanding of the Founders. “James Wilson—who had participated in the

Philadelphia Convention at which the document was drafted—explained that . . . the President . .

. ‘is amenable to [the laws] in his private character as a citizen, and in his public character by

impeachment.’”

Jones, 520 U.S. at 696 (quoting 2 J. ELLIOT, DEBATES ON THE FEDERAL

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CONSTITUTION 480 (2d ed. 1863)) (cleaned up). “With respect to acts taken in his ‘public

character’—that is, official acts—the President may be disciplined principally by impeachment,

not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private

acts.” Id.; see also THE FEDERALIST No. 43 (J. Madison); THE FEDERALIST Nos. 65, 69, 77 (A.

Hamilton) (Alexander Hamilton explaining in three essays that criminal prosecution of a President

can occur only “afterwards,” “after,” “subsequent” to, and as a “consequence” of impeachment

and conviction by the Senate).

As Justice Alito noted in Vance, “[t]he plain implication” of the Impeachment Judgment

Clause “is that criminal prosecution, like removal from the Presidency and disqualification from

other offices, is a consequence that can come about only after the Senate’s judgment, not during

or prior to the Senate trial.” 140 S. Ct. at 2444 (Alito, J., dissenting). “This was how Hamilton

explained the impeachment provisions in the Federalist Papers. He wrote that a President may ‘be

impeached, tried, and, upon conviction . . . would afterwards be liable to prosecution and

punishment in the ordinary course of law.’” Id. (quoting THE FEDERALIST No. 69, p. 416 (C.

Rossiter ed. 1961)); see also THE FEDERALIST No. 77, p. 464 (C. Rossiter ed. 1961) (A. Hamilton)

(arguing that a President is “at all times liable to impeachment, trial, [and] dismission from office,”

but any other punishment must come only “by subsequent prosecution in the common course of

law”); THE FEDERALIST NO. 65.

The President’s Unique Role Requires Immunity From Prosecution Based On

Official Acts

“The President occupies a unique position in the constitutional scheme.”

Nixon v.

Fitzgerald, 457 U.S. 731, 749 (1982). Under Article II, § 1 of the Constitution, the President is

“the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy

responsibilities of utmost discretion and sensitivity.” Id. at 749-50. “Nor can the sheer prominence

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of the President’s office be ignored.” Id. at 752-53. “In view of the visibility of his office and the

effect of his actions on countless people, the President would be an easily identifiable target for”

criminal prosecution in countless federal, state, and local jurisdictions across the country. Id. at

753. “Cognizance of this personal vulnerability frequently could distract a President from his

public duties, to the detriment of not only the President and his office but also the Nation that the

Presidency was designed to serve.” Id. This “unique status under the Constitution distinguishes

him from other executive officials.” Id. at 750. As a result of “the singular importance of the

President’s duties,” “diversion of his energies by concern with” criminal prosecution administered

by the judicial branch “would raise unique risks to the effective functioning of government.” Id.

at 751; see also Brett Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and

Beyond, 93 MINN L. REV. 1454, 1461 (2009) (“[A] President who is concerned about an ongoing

criminal investigation is almost inevitably going to do a worse job as President”).

Without immunity from criminal prosecution based on official acts, the President’s

political opponents will seek to influence and control his or her decisions via de facto extortion or

blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for

acts that do not warrant any such prosecution. This threat will hang like a millstone around every

future President’s neck, distorting Presidential decisionmaking, undermining the President’s

independence, and clouding the President’s ability “to deal fearlessly and impartially with the

duties of his office.” Fitzgerald, 457 U.S. at 752 (cleaned up).

“The Presuppositions Of Our Political History” Support Presidential

Immunity From Prosecution For Official Acts

“[T]he presuppositions of our political history,” including “tradition[s] so well grounded

in history and reason,” help to define the scope of presidential immunity. Fitzgerald, 457 U.S. at

745. This history dates back to the founding and was upheld in Marbury v. Madison, as discussed

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above. There, Charles Lee, who served as Attorney General under Presidents Washington and

Adams, “declare[d] it to be [his] opinion, grounded on a comprehensive view of the subject, that

the President is not amenable to any court of judicature for the exercise of his high functions, but

is responsible only in the mode pointed out in the constitution,” i.e., by impeachment. Marbury,

5 U.S. at 149 (emphasis added).

Indeed, in 234 years from 1789 to 2023, no president was ever prosecuted for his official

acts. “Such a lack of historical precedent is generally a telling indication of a severe constitutional

problem with the asserted power.” Trump v. Anderson, 2024 WL 899207, at *5 (Mar. 4, 2024)

(cleaned up); see also Seila Law, LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (“Perhaps the most

telling indication of [a] severe constitutional problem . . . is [a] lack of historical precedent to

support it.” (cleaned up)).

The unbroken tradition of not exercising the supposed formidable power of criminally

prosecuting a President for official acts—despite ample motive and opportunity to do so, over

centuries—implies that the power does not exist. See id.; see also, e.g., NFIB v. OSHA, 595 U.S.

109, 119 (2022) (per curiam); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.

477, 505 (2010)). “[T]he longstanding ‘practice of the government,’ can inform our determination

of ‘what the law is.’” N.L.R.B. v. Noel Canning, 573 U.S. 513, 525 (2014) (first quoting

McCulloch, 17 U.S. at 401, and then quoting Marbury, 5 U.S. at 177). “That principle is neither

new nor controversial,” and this Court’s “cases have continually confirmed [this] view.” Id. (citing

Mistretta v. United States, 488 U.S. 361, 401 (1989), and eight other cases from 1803 to 1981).

American history abounds with examples of presidents who were accused by political

opponents of committing crimes through their official acts—yet none was ever prosecuted, until

last year. These include, among many others, John Quincy Adams’ alleged “corrupt bargain” in

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appointing Henry Clay as Secretary of State;3 President George W. Bush’s allegedly false claim

to Congress that Saddam Hussein possessed stockpiles of “weapons of mass destruction,” which

led to war in which thousands of Americans were killed;4 and President Obama’s alleged

authorization of a drone strike that targeted and killed a U.S. citizen abroad (and his teenage son,

also a U.S. citizen).5 They also include, among many other examples, President Clinton’s lastminute pardon of fugitive financier Marc Rich,6 President Clinton’s repeated use of airstrikes in

the Middle East in August and November 1998 in an alleged attempt to distract attention from the

Monica Lewinsky scandal,7 President Biden’s egregious mismanagement of the United States’

border security, and President Biden’s alleged “material support for terrorism” through both the

funding of the UNRWA despite its documented history of direct support for terrorism, and release

See, e.g., Jessie Kratz, The 1824 Presidential Election and the “Corrupt Bargain”, NAT’L

ARCHIVES (Oct. 22, 2020), https://prologue.blogs.archives.gov/2020/10/22/the-1824-presidentialelection-and-the-corrupt-bargain.

See, e.g., Gary L. Gregg II, George W. Bush: Foreign Affairs, UVA MILLER CENTER,

https://millercenter.org/president/gwbush/foreign-affairs; Tim Arango, Ex-Prosecutor’s Book

Accuses

Bush

Murder,

N.Y.

TIMES

(July

2008),

https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html.

See, e.g., Spencer Ackerman, US Cited Controversial Law in Decision to Kill American Citizen

by Drone, THE GUARDIAN (June 23, 2014), https://www.theguardian.com/world/2014/jun/23/usjustification-drone-killing-american-citizen-awlaki.

Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, NAT’L REV.

(Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wages-of-prosecuting-presidentsover-their-official-acts.

See, e.g., World Media Troubled by Clinton’s Timing in Airstrikes, CNN (Dec. 18, 1998),

http://edition.cnn.com/WORLD/meast/9812/18/iraq.press/; Francis X. Clines and Steven Lee

Myers, Attack on Iraq; The Overview; Impeachment Vote in House Delayed As Clinton Launches

Iraq Air Strike, Citing Military Need to Move Swiftly, N.Y. TIMES (Dec. 17, 1998),

https://www.nytimes.com/1998/12/17/world/attack-iraq-overview-impeachment-vote-housedelayed-clinton-launches-iraq-air.html.

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of billions of dollars to Iran’s terror-sponsoring regime.8 Despite numerous examples of presidents

committing allegedly “criminal” behavior in their official acts throughout American history, none

was ever prosecuted in 234 years before 2023. The “presuppositions of our political history,”

Fitzgerald, 457 U.S. at 745, thus confirm that prosecutors and courts lack authority to prosecute

and place a President on trial for official acts.

Analogous Immunity Doctrines Support Presidential Immunity From

Prosecution Based On Official Acts

Analogous immunity doctrines strongly favor the conclusion that absolute presidential

immunity extends to immunity from criminal prosecution for official acts. See Vance, 140 S. Ct.

at 2426 (noting the Fitzgerald Court’s “careful analogy to the common law absolute immunity of

judges and prosecutors”).

In their common-law origins, immunity doctrines extended to both civil and criminal

liability: “The immunity of federal executive officials began as a means of protecting them in the

execution of their federal statutory duties from criminal or civil actions based on state law.” Butz

v. Economou, 438 U.S. 478, 489 (1978) (citation omitted). Common-law immunity doctrines

See, e.g., Jason Willick, The Eyebrow-Raising Line in the Trump Immunity Opinion, WASH. POST

(Feb. 7, 2024), https://www.washingtonpost.com/opinions/2024/02/07/trump-immunity-decisiondisclaimer; Andrew C. McCarthy, Thoughts on Biden’s Funding of Terror-Sponsoring UNRWA

and D.C. Circuit’s Delay on Trump Immunity, NAT’L REVIEW (Jan. 31, 2024),

https://www.nationalreview.com/corner/thoughts-on-bidens-funding-of-terror-sponsoring-unrwaand-d-c-circuits-delay-on-trump-immunity (“When President Biden insisted on restarting funding

for UNRWA, to the tune of over $1 billion since 2021, there was abundant, well-known evidence,

going back decades, that UNRWA provides material support to terrorism. It was not just a

hypothetical possibility that Biden’s funding might end up facilitating Hamas’s operations. There

were notorious cases over the years of UNRWA terror support.”); The Editorial Board, Hamas

Was

Right

Under

Unrwa’s

Nose,

WALL

ST.

(Feb.

11,

2024),

https://www.wsj.com/articles/hamas-was-right-under-unrwas-nose-tunnels-gaza-israel-warf715d219?mod=opinion_lead_pos2 (“Israel has provided evidence that 12 Unrwa employees took

part in the Oct. 7 massacre, and that 1,200 are affiliated with or members of Hamas and Islamic

Jihad.”).

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encompass the “privilege . . . to be free from arrest or civil process,” i.e., criminal and civil

proceedings alike. Tenney v. Brandhove, 341 U.S. 367, 372 (1951).

Members of Congress are immune from criminal prosecution for acts within the scope of

their legislative duties. See United States v. Johnson, 383 U.S. 169, 179 (1966) (“The legislative

privilege, protecting against possible prosecution by an unfriendly executive and conviction by a

hostile judiciary, is one manifestation of the ‘practical security’ for ensuring the independence of

the legislature.”). Speech and debate immunity resembles presidential immunity because it serves

a unique role in preserving the separation of powers in our constitutional structure. See Tenney,

341 U.S. at 376. “[I]t is apparent from the history of the [Speech and Debate] clause that the

privilege was not born primarily of a desire to avoid private suits . . . , but rather to prevent

intimidation by the executive and accountability before a possibly hostile judiciary.” Johnson,

383 U.S. at 180-81 (emphasis added). Thus, Johnson held that criminal prosecution for official

acts—not civil liability—was the “chief fear” that led to the adoption of legislative immunity. Id.

at 182; see also Gravel v. United States, 408 U.S. 606, 624 (1972) (reasoning that acts “within the

sphere of legitimate legislative activity” “may not be made the basis for a civil or criminal

judgment against a Member”). Presidential immunity serves no less important a role in “our

scheme of government,” Tenney, 341 U.S. at 377, than legislative immunity.

Likewise, absolute judicial immunity protects state and federal judges from criminal

prosecution, as well as civil suits, based on their official judicial acts—excepting cases involving

judicial bribery and extortion, which have long been held not to constitute judicial acts. See

Spalding v. Vilas, 161 U.S. 483, 494 (1896) (“The doctrine which holds a judge exempt from a

civil suit or indictment for any act done or omitted to be done by him, sitting as judge, has a deep

root in the common law.” (cleaned up)); see also Alvarez v. Snyder, 264 A.D.2d 27, 34 (1st Dep’t

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2000) (“[F]ew doctrines were more solidly established at common law than the immunity of judges

from liability for damages for acts committed within their judicial jurisdiction.” (cleaned up));

Weitzner v. New York City Dep’t of Soc. Servs., 212 A.D.2d 414, 414 (1st Dep’t 1995)

(“[I]mmunity is absolute where the conduct is judicial or quasi-judicial in nature.”).

“This immunity applies even when the judge is accused of acting maliciously and

corruptly.” Pierson v. Ray, 386 U.S. 547, 554 (1967); see also Fitzgerald, 457 U.S. at 745-46;

Moskovits v. New York, 206 A.D.3d 535, 536 (1st Dep’t 2022) (“[T]he court correctly held the

claim is barred by the doctrine of judicial immunity, which extends to all [j]udges and encompasses

all judicial acts, even if such acts are in excess of their jurisdiction and are alleged to have been

done maliciously or corruptly.” (cleaned up)). In the few cases where prosecutors have brought

criminal charges against judges for their judicial acts, courts have rejected them. See, e.g., United

States v. Chaplin, 54 F. Supp. 926, 928 (S.D. Cal. 1944) (holding that judicial immunity barred

the criminal prosecution of a judge who was “acting in his judicial capacity and within his

jurisdiction in imposing sentence and probation upon a person charged with an offense in his court

to which the defendant has pleaded guilty”). Reviewing many authorities, Chaplin concluded that

absolute immunity shielded the judge from criminal prosecution as well as civil suit. Id. at 934

(holding that criminal prosecution of judges for judicial acts “would . . . destroy the independence

of the judiciary and mark the beginning of the end of an independent and fearless judiciary”); cf.

Salomon v. Mahoney, 271 A.D. 478, 479-80 (1st Dep’t 1946) (“The immunity of judges for

statements made and acts done in their judicial capacity is for sound reasons of public interest and

policy a fundamental principle of our jurisprudence on which rests the independence of the

administration of justice.”). The exact same reasoning applies to President Trump and all

Presidents.

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Public Policy Considerations Support Presidential Immunity From

Prosecution

In considering presidential immunity, the Supreme Court “has weighed concerns of public

policy, especially as illuminated by our history and the structure of our government.” Fitzgerald,

457 U.S. at 747-48 (citations omitted). Here, public policy overwhelmingly supports a finding of

immunity from prosecution based on evidence of official acts.

First, robust immunity is appropriate for officials who have “especially sensitive duties.”

Fitzgerald, 457 U.S. at 746. The President’s duties are “highly sensitive.” Id. at 756.

Second, immunity is most appropriate for officials from whom “bold and unhesitating

action” is required. Fitzgerald, 457 U.S. at 745.9 “[T]o submit all officials, the innocent as well

as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the

ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their

duties,” and subject them “to the constant dread of retaliation.” Barr v. Matteo, 360 U.S. 564, 57172 (1959) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.)); see also id.

at 571 (expressing concern that suits would “inhibit the fearless, vigorous, and effective

administration of policies of government”). In Vance, the Supreme Court noted this concern was

central to its adoption of absolute immunity for the President, holding that Fitzgerald “conclud[ed]

Similarly, in the context of immunity under the Speech or Debate Clause, which includes criminal

immunity, “[t]here is little doubt that the instigation of criminal charges against critical or

disfavored legislators by the executive in a judicial forum was the chief fear prompting the long

struggle for parliamentary privilege in England and, in the context of the American system of

separation of powers, is the predominate thrust of the Speech or Debate Clause. In scrutinizing

this criminal prosecution, then, we look particularly to the prophylactic purposes of the clause.”

Johnson, 383 U.S. at 182. The Supreme Court has thus emphasized that criminal as well as civil

immunity is essential for a legislator to have the freedom to exercise bold and unhesitating action

in his or her legislative acts, which is itself essential to preserving the legislative “independence”

required by the separation of powers: “The legislative privilege, protecting against possible

prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation

of the ‘practical security’ for ensuring the independence of the legislature.” Id. at 179.

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that a President . . . must deal fearlessly and impartially with the duties of his office—not be made

unduly cautious in the discharge of [those] duties by the prospect of civil liability for official acts.”

140 S. Ct. at 2426 (cleaned up). The threat of criminal prosecution poses a greater risk of deterring

bold and unhesitating action than the threat of civil suit.

Third, “[f]requently acting under serious constraints of time and even information,” a

President inevitably makes many important decisions, and “[d]efending these decisions, often

years after they were made, could impose unique and intolerable burdens . . . .” Imbler v.

Pachtman, 424 U.S. 409, 425-26 (1976). The President’s “focus should not be blurred by even

the subconscious knowledge” of the risk of future prosecution. Id. at 427. And “[t]here is no

question that a criminal prosecution holds far greater potential for distracting a President and

diminishing his ability to carry out his responsibilities than does the average civil suit.” Vance,

140 S. Ct. at 2452 (Alito, J., dissenting). Far more than civil liability, the threat of criminal

prosecution undermines the President’s “maximum ability to deal fearlessly and impartially with

the duties of his office.” Fitzgerald, 457 U.S. at 752 (citation and quotation marks omitted).

Fourth, another key purpose of immunity for senior officials is to “prevent them being

harassed by vexatious actions.” Spalding, 161 U.S. at 495 (quotation omitted); see also Vance,

140 S. Ct. at 2452 (Alito, J., dissenting) (expressing concern that the subpoena “threaten[ed] to

impair the functioning of the Presidency and provides no real protection against the use of the

subpoena power by the Nation’s 2,300+ local prosecutors”). The President, as the most highprofile government official in the country, is most likely to draw politically motivated ire, and

most likely to be targeted for harassment by vexatious actions. See Cheney v. U.S. Dist. Ct. for

D.C., 542 U.S. 367, 369 (2004) (recognizing “the paramount necessity of protecting the Executive

Branch from vexatious litigation that might distract it from the energetic performance of its

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constitutional duties.”). The rationale of Vance, 140 S. Ct. at 2426, provides additional support

for a finding of official immunity—as Fitzgerald, Spalding, Butz, Imbler, and similar cases held.

Without immunity from criminal prosecution based on official acts, the presidency will cease to

function and that will erode the bedrock of our republic.

II.

The Court Should Adjourn The Trial Until The Supreme Court Decides Trump v.

United States

While the concept of presidential immunity is firmly established, the doctrine’s scope

presents a “serious and unsettled question of law.” Fitzgerald, 457 U.S. at 743. Therefore, the

Court should adjourn the trial until the Supreme Court resolves Trump v. United States for several

reasons.

While adjournments are “ordinarily committed to the sound discretion of the trial court,”

“in particular situations, when the protection of fundamental rights has been involved in requests

for adjournments, that discretionary power has been more narrowly construed.” People v. Spears,

64 N.Y.2d 698, 699-700 (1984); see also People v. Foy, 32 N.Y.2d 473, 477 (1973) (recognizing

that “mere inconvenience is not sufficient ground for denying an adjournment when to do so would

abridge a basic right”). Because of the importance of the Presidency in the constitutional order,

as well as the Supremacy Clause and related federalism principles implicated here, the

adjournment is warranted to ensure proper adjudication of the presidential immunity defense and

to prevent improper evidence of official acts from being used in the unprecedented fashion

apparently contemplated by the People.

Waiting to try the case until after the Supreme Court addresses the question before it—

following oral argument just next month—will likely simplify the application of the defense to

evidentiary issues raised by the People’s motions in limine. See Mook v. Homesafe Am., Inc., 144

A.D.3d 1116, 1117 (2d Dep’t 2016) (“[A] prior determination in the criminal proceeding could

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have collateral estoppel effect in this action, thereby simplifying the issues.”). Specifically, as

discussed below, the scope of “official acts” for purposes of applying presidential immunity is a

developing area of the law that the Supreme Court is expected to address, at least to a certain

extent, in Trump v. United States. See Gen. Aniline & Film Corp. v. Bayer Co., 305 N.Y. 479, 485

(1953) (reasoning that “considerations of comity and orderly procedure” are relevant to stay

application); cf. Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 63 n.18 (1997) (explaining that

“in the interest of uniformity and to discourage forum shopping, the Arizona appeals court decided

to defer to the federal litigation, forgoing independent analysis,” including “stay[ing] proceedings

pending our decision in this case”); Aquino v. United States, 2020 WL 1847783, at *1 (S.D.N.Y.

Apr. 13, 2020) (noting that defendant’s “motion has been the subject of judicial stays pending

decisions of appellate courts”).

The adjournment would also “avoid[] the unnecessary risk of inconsistent adjudications as

to the defenses asserted” by President Trump in state and federal courts relating to the presidential

immunity doctrine. Goodridge v. Fernandez, 121 A.D.2d 942, 945 (1st Dep’t 1986); Belopolsky

v. Renew Data Corp., 41 A.D.3d 322, 322 (1st Dep’t 2007) (finding no abuse of discretion in stay,

“[u]pon due consideration of the goals of judicial economy, orderly procedure and the prevention

of inequitable results,” where “the determination of the prior action may dispose of or limit issues

which are involved in the subsequent action”); Schneider v. Lazard Freres & Co., 159 A.D.2d 291,

293-94 (1st Dep’t 1990) (“[W]e stay the New York action because the Delaware action raises

numerous possibilities for the application of collateral estoppel . . . .”).

Finally, the adjournment would mitigate the risk that an error in the application of this

complex federal-law issue could require the Court, the parties, the State, the City, and the County

to expend the resources necessary to re-try the case.

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III.

The People Must Be Precluded From Offering Evidence Of President Trump’s

Official Acts

The Court should preclude the People from offering evidence at trial that Your Honor

determines, following a hearing outside the presence of the jury, constituted an “official act” during

President Trump’s first term in Office.

“Official Acts” Include Presidential Decisions On The “Outer Perimeter”

The presidential immunity doc

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