Trump Has Few Ways to Overturn His Conviction as a New York Felon
NEW YORK — “This is long from over,” Donald Trump, the former president and current felon, declared Thursday, moments after a Manhattan jury convicted him on 34 counts of falsifying records to cover up a sex scandal.
Trump, the presumptive Republican nominee, is banking on the jury not having the final word on the case. He has already outlined a plan to appeal a verdict that Friday he labeled “a scam.”
But even if the former — and possibly future — president could persuade voters to ignore his conviction, the appellate courts might not be so sympathetic. Several legal experts cast doubt on his chances of success and noted that the case could take years to snake through the courts, all but ensuring he will still be a felon when voters head to the polls in November.
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And so, after a five-year investigation and a seven-week trial, Trump’s New York legal odyssey is only beginning.
The former president’s supporters are calling on the U.S. Supreme Court to intervene, though that is highly unlikely. In a more likely appeal to a New York court, Trump would have avenues to attack the conviction, the experts said, but far fewer than he has claimed. The experts noted that the judge, whose rulings helped shape the case, stripped some of the prosecution’s most precarious arguments and evidence from the trial.
The appeal will be a referendum on the judge, Juan M. Merchan, who steered the trial through political and legal minefields even as Trump hurled invective at him and his family. Merchan, a no-nonsense former prosecutor, said that he was keenly aware “and protective of” Trump’s rights, including his right to “defend himself against political attacks.”
Mark Zauderer, a veteran New York litigator who sits on a committee that screens applicants for the same court that will hear Trump’s appeal, said that Merchan avoided pitfalls that often doom convictions.
“This case has none of the usual red flags for reversal on appeal,” Zauderer said. “The judge’s demeanor was flawless.”
Even if Merchan’s rulings provide little fodder, Trump could challenge the foundation of the prosecution’s case. Trump’s lawyers note that Alvin L. Bragg, the Manhattan district attorney, used a novel theory to charge Trump with 34 felony counts of falsifying business records.
In New York, that crime is a misdemeanor, unless the records were faked to conceal another crime. To elevate the charges to felonies, Bragg argued that Trump had falsified the records to cover up violations of a little-known state law against conspiring to win an election by “unlawful means.”
Trump’s conspiracy occurred during his first run for the White House. When Trump arranged to buy and bury damaging stories about his sex life, including a porn actor’s story of a tryst, he was trying to influence the 2016 election, Bragg said.
In an appeal, Trump’s lawyers are expected to argue that Bragg inappropriately stretched the state election law — a convoluted one, at that — to cover a federal campaign. And they could claim that the false records law itself does not apply to Trump’s case.
“I certainly don’t think there has been a prosecution of falsifying business records like this one,” said Barry Kamins, a retired judge and expert on criminal procedure who teaches at Brooklyn Law School. “This is all uncharted territory, as far as an appellate issue.”
None of this criticism will surprise Bragg, a career prosecutor who has shown himself to be comfortable with innovative applications of law. Bragg’s head of appeals, Steven Wu, a fast-talking litigator, attended much of the trial. When the verdict was read, he was sitting in the second row, to Bragg’s right.
It is now Wu’s job to ensure that Trump does not escape his conviction.
Over a lifetime spent in legal gray areas, Trump has developed a knack for delaying or dodging criminal consequences. Just as law enforcement authorities would appear to close in on him, and his adversaries assumed he was on the ropes, Trump would prevail.
In his four years as president, Trump survived two impeachments, a federal investigation and a special counsel inquiry. In his post-presidential life, he has been indicted four times in four different cities, but three of those cases are mired in delays, thanks in part to the U.S. Supreme Court.
He was, to foes and friends alike, “Teflon Don.”
But now, just like every other criminal defendant in New York, the deck is stacked against him. Appeals courts typically frown upon overturning jury decisions, barring some glaring error or misconduct.
Merchan will sentence Trump on July 11, just days before he attends the Republican National Convention to be anointed as the party’s presidential nominee. The judge could sentence him to as long as to four years in prison, or impose only probation.
The sentencing will start a 30-day clock for Trump to file a notice of appeal. That notice is just a legal stake in the ground. Trump will then have to mount the actual appeal at the New York State’s Appellate Division, 1st Department. The panel of appellate court judges most likely would not hear arguments until next year and might not issue a decision until early 2026.
And that won’t necessarily be the final say. Trump or Bragg’s office could ask the New York Court of Appeals, the state’s highest court, to review the decision.
Trump might also have a final option: the U.S. Supreme Court. Trump, who already tried and failed to move the case to federal court, could try again if he were elected.
It would be a long shot. Procedurally, it is exceedingly difficult for a state defendant to reach the Supreme Court without exhausting state appeals.
“This is a garden-variety state court conviction,” Zauderer said. “I don't see a plausible path to the Supreme Court.”
Yet the court has appeared sympathetic to Trump in one of his other criminal cases. And in an appearance on Fox News on Friday, the Republican speaker of the House, Mike Johnson, argued that the justices should take up Trump’s cause.
“I think that the justices on the court — I know many of them personally — I think they’re deeply concerned,” said Johnson, a Trump ally. “I think they’ll set this straight, but it’s going to take a while.”
At his news conference at Trump Tower on Friday, Trump outlined a blueprint for his appeal, airing a litany of grievances about Merchan, whom he called “a tyrant.”
“He wouldn’t allow us to have witnesses or have us talk or allow us to do anything,” Trump claimed, adding that witnesses were “literally crucified by this man who looks like an angel, but he’s really a devil.”
Those accusations were false. Merchan did not prohibit Trump from calling witnesses, though he did limit the testimony of a defense expert who was set to testify about election law but ultimately never took the stand. (Merchan determined that the expert’s testimony about the law would intrude on the judge’s own responsibility.)
Trump also claimed that Merchan effectively prevented him from testifying in his own defense. The judge, he said, would have allowed prosecutors to question him about his past legal troubles and “everything that I was ever involved in.”
That was a significant exaggeration.
Defendants routinely premise appeals on a judge’s decision about how much prosecutors may cross-examine them. They also often argue that judges have allowed evidence beyond the scope of the charges. But Merchan refused to let the prosecution enter a variety of damaging evidence about Trump, including accusations that he sexually assaulted women.
Both of those issues were at the heart of the Court of Appeals’s recent decision to overturn the sex crimes conviction of Harvey Weinstein, the former Hollywood producer. Yet Kamins, who was one of the lawyers who handled Weinstein’s appeal, said they would not carry the day for Trump.
Merchan, who began every trial day with a “good morning” for Trump, did occasionally scold him for misbehaving in the courtroom or violating a gag order that banned attacks on witnesses and jurors. But he did so outside the presence of the jurors.
When the porn actor, Stormy Daniels, was on the stand, and Trump muttered, “Bullshit,” the judge waited for the jury to leave before summoning a defense lawyer to the bench. “I am speaking to you here at the bench because I don’t want to embarrass him,” the judge told Trump’s lawyer, Todd Blanche.
Merchan bent over backward when Trump repeatedly violated the gag order.
“Mr. Trump, it’s important to understand that the last thing I want to do is to put you in jail,” he said. “You are the former president of the United States and possibly the next president.”
Merchan also reined in the prosecution’s efforts to lower the legal bar for convicting Trump. In his instructions to the jury about how to apply the law to Trump’s case, the judge refused to include suggestions from prosecutors that would have made a conviction all but certain.
Still, no judge is perfect. At times during the trial, Merchan appeared to lose his temper, castigating the defense for arguments he saw as frivolous or repetitive.
And Trump’s lawyers are expected to challenge Merchan’s decisions to keep the trial in Manhattan, where the former president is deeply unpopular, and to bless Bragg’s theory of the case.
The law required Bragg to show that Trump caused a false entry in the records of “an enterprise.” Trump’s lawyers might argue that no such enterprise was involved. The documents, they believe, belonged to Trump personally, not his company.
The second crime — the election law conspiracy — provides another possible avenue for Trump’s lawyers. The legal theory underpinning the prosecution included not only untested law but also a complex combination of statutes, one tucked inside another like Russian nesting dolls.
This theory required Merchan to provide the jury with byzantine legal instructions.
“The more complex the jury instructions, the more likely they are to bear appellate issues,” said Nathaniel Z. Marmur, a New York appellate lawyer. “And these are some of the most complex instructions one could imagine.”
Long before the appeal is decided, Trump’s political fate will have been set. In the single day since the jury convicted him, campaign donations have poured into his coffers, and Trump cast Election Day as the “real verdict.”
His opponent, President Joe Biden, said that the conviction alone will not thwart a Trump presidency.
“There’s only one way to keep Donald Trump out of the Oval Office: at the ballot box,” he said.
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