Trump expected to argue he has presidential immunity now, as president-elect, in new bid to dismiss hush-money case

Donald Trump smiles for pool photographers at his hush-money trial in Manhattan.

The US Supreme Court found in July that presidents enjoy broad immunity from prosecution.

But is a president-elect also immune?

In a filing due by day’s end on Monday, lawyers for Donald Trump are poised to argue just that — that he’s immune from prosecution right now.

His hush-money case should therefore be immediately dismissed, and his 34 felony convictions wiped clean, his lawyers said last month that they plan to argue.

“Just as a sitting President is completely immune from any criminal process, so too is President Trump as President-elect,” Trump’s legal team wrote the trial judge, New York Supreme Court Justice Juan Merchan in a letter dated November 19.

Monday is the defense team’s deadline for spelling out to Merchan why a pre-inaugural Trump cannot be sentenced and why the whole case must instead be tossed — as if a nearly seven-year investigation and prosecution by the Manhattan District Attorney’s Office had never happened.

Trump was convicted six months ago on 34 counts of falsifying business records throughout his first year in office in order to retroactively hide a hush-money payment that silenced porn actress Stormy Daniels 11 days before the 2016 election.

“On November 5, 2024, the Nation’s People issued a mandate that supersedes the political motivations of DANY’s ‘People,'” Trump attorneys Todd Blanche and Emil Bove wrote to the judge on November 19, using the acronym for the District Attorney of New York.

“This case must be immediately dismissed,” wrote Blanche and Bove, now nominated by Trump to be his deputy attorney general and principal associate deputy attorney general, respectively.

Just how Trump leaps from presidential immunity to president-elect immunity has yet to be fleshed out.

The legal precedents and federal regulations cited so far by Blanche and Bove bridge the gap indirectly, and lawyers for Manhattan District Attorney Alvin Bragg have promised to fight the claim that such a thing as presidential-elect immunity even exists.

“We believe these arguments are incorrect,” Bragg wrote in response to the November 19 defense letter. Bragg’s letter promises to counter this latest bid to dismiss the case. Prosecutors are due to respond to Monday’s expected defense filing in a week, by Monday, December 9.

Only after the judge decides if the case is dismissed can Trump’s sentencing — already postponed three times — be calendared or canceled.

And even if Merchan calendars it, Trump’s lawyers have promised to halt the sentencing by immediately appealing his decision through the federal court system — to SCOTUS if necessary.

Donald Trump at his hush-money trial in New York in April, with New York Supreme Court Justice Juan Merchan on the bench.

The argument that a president-elect has immunity

So why does Trump believe he enjoys presidential immunity from prosecution even now, as president-elect?

Blanche and Bove first tipped their hand on their arguments in a November 8 letter to the judge — written just three days after the election. In the letter, they argue that presidents and presidents-elect are pretty much the same thing when it comes to enjoying legal protections from prosecution.

The two lawyers quote from a 2000 Department of Justice memo barring the federal prosecution of sitting presidents (the same memo cited by special counsel Jack Smith in last week’s move to dismiss Trump’s two federal cases.)

“The same complete immunity from criminal process of any kind extends to a President-elect during the transition period,” Blanche and Bove write, without elaborating on how DOJ policy would extend to a state prosecution like the hush-money case.

“There is no material difference between President Trump’s current status after his overwhelming victory in the national election and that of a sitting President following inauguration,” the lawyers wrote.

A second argument for special treatment of presidents-elect, made repeatedly by the two lawyers in the past month, draws on the Presidential Transition Act of 1963, which provides for the “orderly transfer of Executive powers.”

“President Trump has already commenced this complex, sensitive, and intensely time-consuming process,” the two lawyers wrote of the transition on November 8.

Continuing with the hush-money case would “be uniquely destabilizing” and threaten to “hamstring the operation of the whole government apparatus,” the two wrote on November 19.

Donald Trump leaves the courtroom after being found guilty on all 34 counts in his hush money trial in Manhattan. 

In the furtherance of justice

Trump’s lawyers have also argued that the case should be dismissed under New York law, which allows an indictment to be dismissed “in furtherance of justice.”

A so-called interest of justice dismissal would require Merchan to find “some compelling factor, consideration or circumstance” under which continuing a prosecution “would constitute or result in injustice.”

Merchan would be asked to weigh the strength and seriousness of the offense, the extent of the harm it caused, and the “history, character, and condition of the defendant.”

He would also have to weigh “the impact of a dismissal upon the confidence of the public in the criminal justice system.”

Blanche and Bove did not immediately respond to a request for comment on this story. A spokesperson for the Manhattan DA’s office also did not immediately respond to a request for comment.