(NEW YORK) — With Donald Trump’s sentencing in his New York hush money case delayed until September following Tuesday’s decision by Judge Juan Merchan, the judge now faces the task of applying the Supreme Court’s new test for the limits of presidential immunity to the former president’s criminal conviction.
Trump in May was found guilty on 34 felony counts of falsifying business records related to a 2016 hush money payment to adult film actress Stormy Daniels in order to boost his electoral prospects in the 2016 presidential election.
Trump’s lawyers have argued that the judge should “set aside” the jury’s verdict in the case because the jury heard evidence during the trial that would have been protected by presidential immunity, based on Monday’s ruling by the Supreme Court that Trump is entitled to “at least presumptive immunity” from criminal prosecution for official acts taken while in office.
To rule on the defense’s request — which Judge Merchan plans to do by Sept. 6 — he will likely have to answer two key questions, according to former federal prosecutor Jarrod Schaeffer.
The first question is, would the Supreme Court’s decision have limited some of the evidence and testimony at trial?
Rather than argue that Trump’s conduct related to Daniels’ hush money payment constituted official acts of the presidency — an argument a federal judge rejected last year — Trump’s lawyers have focused on what they have called “official-acts evidence.”
Evidence including Trump’s social media posts in 2018, a government ethics disclosure, and phone records were cited as examples of evidence related to official acts that prosecutors emphasized during their closing arguments to the jury.
Prosecutors introduced some of Trump’s tweets about his former lawyer Michael Cohen to emphasize what they called a “pressure campaign” to prevent him from cooperating with investigators in 2018.
“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,” Trump wrote in an April 2018 tweet.
The Supreme Court’s decision on immunity included some protections for Trump’s communications — including tweets — because they “fall comfortably within the outer perimeter of his official responsibilities”; however, the ruling added that lower courts would need to determine if Trump was speaking in his official capacity as president or in an unofficial function such as a candidate for office or party leader.
Merchan declined to consider Trump’s last-minute challenge to some evidence, including the tweets, ahead of trial, determining that Trump’s request to exclude the evidence was “untimely.”
Defense lawyers also suggested that some testimony from Trump’s former White House communications director Hope Hicks would have been protected by immunity.
“I think Mr. Trump’s opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election,” Hicks testified during the trial regarding a 2018 conversation with then-President Trump about Stormy Daniels’ accusation of a long-denied 2006 sexual encounter with Trump.
Prosecutor Joshua Steinglass later described that testimony to the jury as “devastating,” saying that it “puts the nail in Mr. Trump’s coffin.”
According to Schaeffer, Hicks’ testimony poses a novel question to Merchan, who will need to weigh the Supreme Court’s limit on using “testimony or private records of the President or his advisers” as evidence at trial.
“Even if these are conversations about unofficial acts or purely private conduct, the President is having these conversations with official advisers or people who perform an official role in connection with the presidency,” Schaeffer said. “Would intruding on the llows for cold cases of violent crimes against Black people committed before 1970 to be reopened and investigated.
“We must face it, and we must give respect to our survivors and descendants in this community by demanding that the Department of Justice immediately investigate what happened here, on this sacred ground, over 100 years ago,” Tiffany Crutcher, a descendant of massacre survivors and the executive director of the Terence Crutcher Foundation, said. “This community is watching, President Biden. This nation is watching.”
Randle and Fletcher have also filed a petition for a rehearing to the Oklahoma Supreme Court, asking the court to consider the case again following its June 12 decision to dismiss the survivors’ lawsuit against defendants, which include the city of Tulsa. They were seeking reparations and wanting to hold someone accountable for the massacre and its long-term effects on the local and national Black community.
In an 8-1 decision, the Oklahoma Supreme Court ruled to dismiss a lawsuit filed by the survivors against the city of Tulsa, the Board of County Commissioners for Tulsa County, the Tulsa Regional Chamber and the Oklahoma Military Department, affirming a July 2023 decision by Tulsa District Court Judge Caroline Wall to dismiss the suit with prejudice, meaning that the case cannot be refiled.
“We are profoundly disappointed by the Oklahoma Supreme Court decision to reject our lawsuit. And we are deeply sad that we may not live long enough to see the state of Oklahoma or the United States of America honestly confront and right the wrongs of one of the darkest days of history,” Randle and Fletcher said in a joint statement.
Fletcher’s younger brother, Hughes Van Ellis, was the third plaintiff when the suit was originally filed in 2020. He died last fall at age 102. The suit now names Muriel Watson, personal representative for his estate, as the third plaintiff.
The lawsuit included a claim of public nuisance, alleging that as a result of the massacre, the survivors “continue to face racially disparate treatment and city-created barriers to basic human needs, including jobs, financial security, education, housing, justice and health, that annoy, injure, or endanger their comfort, repose, health, or safety and render them insecure in life, or in the use of their property.”
According to the Oklahoma Supreme Court’s decision, though the plaintiffs’ grievances are legitimate, they do not fall within the scope of the state’s statute for public nuisance.
Besides the allegations of public nuisance, attorneys for the survivors argued that the city of Tulsa has used the historic reputation of Black Wall Street for their own financial benefit. Attorneys argued that any money the city receives from promoting Black Wall Street, the site of the massacre, should be put into a compensation fund for victims and their descendants.
Between May 31 and June 1, 1921, white Tulsa residents set fire to and bombed several square blocks of the city, killing an estimated 300 Black residents and leaving thousands homeless, according to historians. The area affected by the massacre included the Greenwood District, known as Black Wall Street, because of its successful shops and businesses owned by Tulsa’s Black residents.
Though the massacre deeply affected the Greenwood community, it was largely omitted from local, state and national histories for years. In 1997, the Oklahoma State Legislature authorized the Oklahoma Commission to Study the Tulsa Race Riot of 1921. The commission released its final report in February 2001. In more recent years, the massacre has gotten more attention from the media due to the survivors’ ongoing fight for reparations. Still, there has been no government investigation and no parties have been held accountable for the massacre.
“But now that we have been failed by the courts, now that we’ve been failed by the Congress, we’re calling upon President Biden to fulfill his promise to these survivors, to this community and for Black people throughout this nation,” DaMario Solomon-Simmons, lead attorney for the survivors, said. “We hurt as a community, a national Black community, for the destruction of Greenwood.”
ABC News’ Sabina Ghebremedhin contributed to this report.
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