Prosecutors fight Trump’s latest push to dismiss criminal hush-money case

Prosecutors file paperwork and argue that Trump’s position as president-elect does not grant him legal protection

Manhattan prosecutors filed paperwork to fight Donald Trump’s most recent push for dismissal of his criminal hush-money case, saying that his position as president-elect does not grant him legal protection.

They also argued that Trump’s presidency does not permanently shield him from criminal prosecution – repeatedly noting that he was found guilty of crimes unrelated to his time in office.

“This Court should reject defendant’s motion to ‘immediately’dismiss the indictment and vacate the jury’s guilty verdict based on the outcome of the recent presidential election,” prosecutors wrote in papers filed on Monday but made public this afternoon.

“There are no grounds for such relief now, prior to defendant’s inauguration, because President-elect immunity does not exist,” they argued. “And even after the inauguration, defendant’s temporary immunity as the sitting President will still not justify the extreme remedy of discarding the jury’s unanimous guilty verdict and wiping out the already-completed phases of this criminal proceeding.”

They said that Trump’s request – that the case be dismissed immediately – would extend beyond accepted constitutional protections because it would “effectively give him immunity beyond his presidential term for his unofficial criminal conduct”.

If the case were thrown out, they argued, doing so would prolong presidential immunity to a time before his time in office, “by wiping out the effects of an indictment and jury verdict that took place before he was even reelected President.

“Expecting a criminal defendant who has become the President-elect to comply with pre-existing court deadlines – just as a state criminal court expects of every other criminal defendant – does not discriminate against the federal government or ‘treat someone else better than it treats them’,” they also said.

The president-elect’s lawyers on 2 December asked Judge Juan Merchan to toss the case, citing Joe Biden’s recent pardon of his son Hunter Biden on federal tax and gun charges. Lawyers for Trump, who was found guilty in May of 34 state-level felony counts for falsifying business records, also claimed that an ongoing case would undermine the presidency and violate principles of presidential immunity.

“President Biden asserted that his son was ‘selectively, and unfairly, prosecuted’ and ‘treated differently’,” Trump’s lawyers wrote in their submission. And, they alleged, Manhattan prosecutors had engaged in “precisely the type of political theater that President Biden condemned”.

Trump’s team insisted in their motion last week that Merchan’s failure to throw out the case immediately would get in the way of his governance. They warned of “disruptions to the institution of the presidency” that thwart principles of “the presidential immunity doctrine because they threaten the functioning of the federal government”.

Trump has enjoyed legal wins in his federal criminal cases due to presidential immunity arguments. As US justice department policy bars criminal prosecution of a sitting president, the special counsel Jack Smith requested dismissal of the Washington DC federal election interference and Florida classified document cases after Trump’s win.

Courts agreed with Smith’s request, putting an end to these federal prosecutions. The US supreme court decided on 1 July that Trump had broad immunity from prosecution for official actions taken while president and even activities falling on the outer perimeter of White House duties.

Trump has repeatedly leaned on this ruling – decided by the 6-3 conservative supermajority that he himself built – in pushing for dismissal of state-level cases. He has also insisted that the US constitution prohibits state-level courts and judges from interfering with official presidential duties.

This ongoing legal wrangling came after Trump’s win over Kamala Harris in the presidential election. Merchan on 22 November agreed to indefinitely postpone Trump’s sentencing so that attorneys on both sides could argue over its future.

Manhattan prosecutors have contended that any concern Trump’s case could affect the presidency could be addressed without dismissal. In previous court papers, they floated the idea of “deferral of all remaining criminal proceedings until after the end of defendant’s upcoming presidential term”.

In their latest argument, Manhattan prosecutors said that at most, Trump should receive “temporary accommodations during his presidency to prevent this criminal case from meaningfully interfering with his official decision-making”.

“But multiple accommodations well short of dismissal and vacatur would satisfy that objective, including a stay of proceedings during his term in office if judgment has not been entered before presidential immunity attaches,” they said.

In arguing that a stay would be appropriate, prosecutors said it would balance competing interests, “by entirely exempting defendant from any immediate obligations in this case during his time in office, while at the same time respecting the public interest in upholding the rule of law and preserving the meaningful aspects of the criminal process that have already taken place, including the trial and the jury verdict”.

The New York prosecution of Trump stems from a scheme to prevent the adult film actor Stormy Daniels from publicly disclosing an alleged sexual liaison with Trump that had unfolded nearly two decades earlier. Weeks before the 2016 election, prosecutors said, Trump used his then lawyer Michael Cohen to carry out a $130,000 payoff to Daniels.

Prosecutors said that Trump subsequently created false financial records to repay Cohen, by describing reimbursements as legitimate business expenses for consulting. The prosecution said that Trump carried out this payoff plot to protect his chances in the contest against the Democrat Hillary Clinton.