DA Bragg's Opposition to Immunity

District Attorney Alvin Bragg has filed his opposition to Trump's claims of presidential immunity over evidence in the hush money election interference case pursuant to the SCOTUS immunity ruling.

Good afternoon! I know the past few entries of The Breakdown have focused on voting and the election, but today, we’re back to legal filings (whew)!

As we all know, the captured Supreme Court ruled that presidents enjoy absolute immunity for core powers, presumed immunity for official acts, no immunity for private acts, and that any official act cannot be used as evidence against them (which is bananas).

And as we all know, Donald was convicted of 34 felony counts of falsification of business records to interfere in an election in the Manhattan DA’s hush money case.

Pursuant to the Supreme Court’s awful ruling on immunity, Donald filed a motion to vacate his conviction on the grounds that some of the evidence and testimony used in the Manhattan trial is subject to presidential immunity. The judge postponed Donald’s sentencing from July 11th to September 18th and called for briefs.

On the Cleanup on Aisle 45 podcast, we discussed that Donald had little to no chance here for two main reasons:

1. These were private acts. Cutting checks to your former fixer to pay off an adult film actress for keeping her story quiet to impact the outcome of you election as a candidate for office you don’t yet hold is clearly a private act.

2. Donald filed for immunity in this case over evidence and lost, then abandoned his appeal.

If you’ve listened to my podcasts, you’d have heard us say over and over that even though a lot of the pre-trail motions to dismiss that we discuss are silly or early, they have to be made to preserve your right to appeal should you be convicted. The pre-trial motions are like place-holders for later appeals. If you don’t raise it first, you can’t raise it later. And the fact that Donald failed to appeal his loss on his earlier immunity motion in this case precludes him from appealing it later.

Pete Strzok and I said we would wait to see if Alvin Bragg made the same arguments in this case, and he has (plus one more!)

This is from page 1 of his brief:

The criminal charges here… exclusively stem from defendant's "unofficial acts"— conduct for which "there is no immunity." Although the Supreme Court also restricted the consideration of certain evidence of official conduct for which the President is immune, that ancillary holding is also inapplicable here. For one thing, defendant failed to preserve an objection on immunity grounds to most of the evidence that is the subject of his current motion. And, in any event, all of the evidence that he complains of either concerned wholly unofficial conduct or, at most, official conduct for which any presumption of immunity has been rebutted.

People who have been reading my work or listening to my podcast for a long time know that I love an “even if.” For example, when Rep Mo Brooks wanted the DoJ to represent him in a civil case against him for January 6th, the DoJ said “these weren’t official acts because he was campaigning, and even if the court decides the speech was an official act, it can’t be part of any federal employees job to overthrow the government.” (I’m paraphrasing.)

The DA has TWO “even ifs” here, saying “These were private acts, and even if they weren’t, he didn’t appeal. And even if you think it doesn’t matter and you think these are official acts, they still aren’t immune.”

Love it.

So what evidence does Donald want thrown out as “immune?”

Defendant's evidentiary arguments based on official-acts immunity are largely unpreserved. Specifically, defendant raised immunity objections to only two of the six categories of evidence that are the basis of his current motion: Hicks's testimony about "statements by [defendant] while he was President of the United States," and the admission of defendant's 2018 OGE Form 278e. Defendant raised no immunity objection to any of the other categories of evidence, or to other testimony by Hicks. This other evidence accordingly provides no basis to set aside the verdict.

As Ambassador Norm Eisen points out: “That knocks out as a matter of law his late objections on the testimony of Trump's secretary Madeleine Westerhout, Michael Cohen, Trump's social media posts, & most of the Hicks testimony

It leaves us w just 2 categories of evidence.”

The first is Hope Hicks’ testimony about her chats with Donald in 2018 while he was president. Bragg writes:

As a threshold matter, defendant is wrong to assert that Hicks's testimony categorically "concerned official acts based on core Article II authority for which [defendant] is entitled to absolute immunity" solely because she was acting as the White House Communications Director at the time. The Supreme Court rejected any such categorical approach to absolute immunity based on a government official's role in its recent immunity decision. For example, the Court held that not all of a President's discussions with his Vice President would qualify as official conduct subject to absolute immunity. Likewise, although the Court found that defendant was absolutely immune "for the alleged conduct involving his discussions with Justice Department officials," including the Attorney General, that ruling did not turn on those officials' governmental role alone, but relied as well on the Court's finding that the subject matter of their discussion was the potential exercise of the President's "conclusive and preclusive authority" to investigate and prosecute crimes.

Basically, Donald says that because Hicks was Meadows’ Chief of Staff, all their chats are immune. But the Supreme Court explicitly said the immunity isn’t based on the role, but also the content of what was discussed.

And here is the “even if:”

Second, even as to Hicks's testimony about her discussions with defendant in 2018, all of those discussions related solely to unofficial conduct.

So even if the court decides for some reason that any discussion with a chief of staff to the chief of staff is immune, these are discussions about unofficial acts.

That leaves the OGE filing - Donald’s publicly available federal financial filing. Here’s what the District Attorney has to say about that - with lots of even ifs:

1. The obligation to file this form isn’t limited to presidents

2. Even if that didn’t matter, it’s about private finances - so not official acts

3. Even if it reflected official conduct, it’s a public record

4. Even if none of that matters, we brought it in through Jeff McConney - who isn’t a government employee

5. And even if you decide that this is an official act because Donald’s filing is “speaking to the people”, he didn’t object to it at trial

All of that covers the objections Pete Strzok and I had on the Cleanup podcast. But DA Alvin Bragg adds one more: something called “harmless error.” And this is the grandaddy of all “even ifs.”

Even if, for some reason, the court doesn’t accept all these arguments, there is no reasonable possibility that the limited evidence discussed above (even assuming that it should have been excluded) meaningfully contributed to his conviction.

The extensive grand jury evidence cited above far exceeds the required prima facie showing of every element of falsifying business records in the first degree. And no part of the grand jury record described above relies on any official acts evidence. Because the indictment is overwhelmingly supported by admissible evidence, defendant's belated and unpreserved effort to dismiss the indictment should be rejected.

You can read the entire brief here.

Thank you again for supporting my content!

~AG