“This is far from over,” Donald J. Trump, the former president and current felon, said Thursday, moments after a Manhattan jury convicted him of 34 counts of falsifying records to cover up a sex scandal.
Mr. Trump, the presumptive Republican nominee, is counting on the fact that the jury will not have the final word on the case. He has already outlined his intention to appeal a verdict that he described on Friday as a “scam”.
But even if the former — and perhaps future — president were able to persuade voters to ignore his conviction, appeals courts might not be so sympathetic. Several legal experts have questioned his chances of success and noted that the case could take years to play out in court, virtually guaranteeing that he will still be a criminal when voters go to the polls in November.
Thus, after five years of investigation and seven weeks of trial, Mr. Trump’s legal odyssey in New York has only just begun.
The former president’s supporters are calling on the U.S. Supreme Court to intervene, although that is highly unlikely. In a more likely appeal in a New York court, Mr. Trump would have avenues to challenge his conviction, experts said, but far fewer than he claims. Experts noted that the judge whose decisions helped shape the case removed some of the prosecution’s most tenuous arguments and evidence from the trial.
The appeal will be a referendum on Judge Juan M. Merchan, who led the trial through political and legal minefields even as Mr. Trump launched invectives against him and his family. Judge Merchan, a pragmatic former prosecutor, said he was fully aware “and protective” of Mr. Trump’s rights, including his right to “defend himself against political attacks.”
Mark Zauderer, a veteran New York trial lawyer who serves on a committee that selects nominees to the court that will hear Mr. Trump’s appeal, said Judge Merchan avoided the pitfalls that often doom convictions.
“This case presents none of the usual red flags for a reversal on appeal,” Mr. Zauderer said. “The judge’s attitude was impeccable.”
Even if Judge Merchan’s decisions provide little substance, Mr. Trump could challenge the basis of the prosecution’s case. Mr. Trump’s lawyers note that Alvin L. Bragg, the Manhattan district attorney, used a new theory to charge Mr. Trump with 34 counts of falsifying business records.
In New York, this crime is a misdemeanor unless the records were falsified to conceal another crime. To elevate the charges to misdemeanors, Mr. Bragg argued that Mr. Trump falsified the records to cover up violations of a little-known state law prohibiting conspiracy to win an election by “unlawful means.” “.
Mr. Trump’s conspiracy occurred during his first White House campaign. When Mr. Trump arranged to buy and bury damaging stories about his sex life, including a story about dating a porn star, he was trying to influence the 2016 election, a Mr. Bragg said.
In their appeal, Mr. Trump’s lawyers are expected to argue that Mr. Bragg inappropriately stretched the state’s election law — a convoluted law, at that — to cover a federal campaign. And they could argue that the False Records Act itself does not apply to Mr. Trump’s case.
“I certainly don’t think there have been any prosecutions for tampering with business records like this,” said Barry Kamins, a retired judge and criminal procedure expert who teaches at Brooklyn Law School. “This is all uncharted territory, as far as an appeal question is concerned.”
None of this criticism will surprise Mr. Bragg, a career prosecutor who has shown himself comfortable with innovative applications of the law. Mr. Bragg’s appeals manager, Steven Wu, a fast-talking, Yale-trained litigator, attended a large part of the trial. When the verdict was read, he was seated in the second row, to Mr Bragg’s right.
It is now up to Mr. Wu to ensure that Mr. Trump does not escape conviction.
During a lifetime spent in legal gray areas, Mr. Trump has developed a knack for delaying or dodging criminal consequences. As law enforcement appeared to be closing in on him and his opponents believed he was on the ropes, Mr. Trump would prevail.
During his four years as president, Mr. Trump survived two impeachments, a federal investigation and a special counsel probe. During his post-presidential life, he has been indicted four times in four different cities, but three of those cases are mired in delays, in part because of the U.S. Supreme Court.
He was, to both his enemies and his friends, “Teflon Don”.
But now, like every other criminal defendant in New York, the dice are stacked against him. Appeals courts generally frown on overturning jury decisions unless there is an egregious error or malpractice.
Judge Merchan will sentence Mr. Trump on July 11, just days before he attends the Republican National Convention to be nominated as the party’s nominee for president. The judge could sentence him to prison for up to four years, or give him only probation.
The sentencing will start a 30-day window for Mr. Trump to file a notice of appeal. This opinion is just a legal stake in the ground. Mr. Trump will then have to appeal to the New York State Appellate Division, First Department. The appeals court’s panel of judges likely won’t hear arguments until next year and may not issue a decision until early 2026.
And it won’t necessarily be the last word. Mr. Trump or Mr. Bragg’s office could ask the New York Court of Appeals, the state’s highest court, to review the decision.
Mr. Trump may also have one last option: the United States Supreme Court. Mr. Trump, who previously unsuccessfully tried to take the case to federal court, could try again if elected.
This would be far from being the case. Procedurally, it is extremely difficult for a defendant to reach the Supreme Court without exhausting state remedies.
“This is a state court conviction of great variety,” Mr. Zauderer said. “I don’t see a plausible path to the Supreme Court.”
Yet the court was sympathetic to Mr. Trump in one of his other criminal cases. And in an appearance on Fox News on Friday, Republican House Speaker Mike Johnson argued that the justices should make Mr. Trump’s case.
“I think the judges on the court — I know many of them personally — are deeply concerned,” said Mr. Johnson, a Trump ally. “I think they will sort things out, but it will take time.”
At his press conference at Trump Tower on Friday, Mr. Trump outlined his appeal, airing a litany of grievances against Judge Merchan, whom he called a “tyrant.”
“He would not allow us to have witnesses, to have us speak or to allow us to do anything,” Mr. Trump said, adding that the witnesses were “literally crucified by this man who looks like a angel, but who is in reality a devil”.
These accusations were false. Judge Merchan did not prohibit Mr. Trump from calling witnesses, although he limited the testimony of a defense expert who was supposed to testify on election law but who ultimately never took the stand . (Judge Merchan determined that the expert’s testimony about the law would impinge on the judge’s own responsibility.)
Mr. Trump also claimed that Judge Merchan effectively blocked 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 I’ve been involved in.”
This was a considerable exaggeration.
Defendants routinely base their appeals on a judge’s ruling about the extent to which prosecutors can cross-examine them. They also often argue that judges allowed evidence beyond the scope of the charges. But Judge Merchan refused to let the prosecution present various damaging evidence against Mr. Trump, including accusations that he sexually assaulted women.
These two questions were at the heart of the Court of Appeal’s recent decision to overturn the sex crimes conviction of Harvey Weinstein, the former Hollywood producer. Still, Mr. Kamins, who was one of the lawyers who handled Mr. Weinstein’s appeal, said they would not prevail for Mr. Trump.
Judge Merchan, who began each trial day with a “hello” to Mr. Trump, sometimes chastised him for bad behavior in the courtroom or for violating a silence order that prohibited attacks on witnesses and the jurors. But the judge did so outside the presence of the jurors.
When porn star Stormy Daniels took the stand and Mr. Trump muttered “bullshit,” the judge waited for the jury to leave before summoning a defense lawyer to the bench. “I’m talking to you here in court because I don’t want to embarrass him,” the judge told Mr. Trump’s lead lawyer, Todd Blanche.
Judge Merchan went out of his way when Mr. Trump repeatedly violated the gag order.
“Mr. Trump, it’s important to understand that the last thing I want to do is put you in jail,” he said. “You are the former president of the United States, and perhaps the next president.”
Judge Merchan also put the brakes on the prosecution’s efforts to lower the legal bar for convicting Mr. Trump. In his instructions to the jury on how to apply the law to Mr. Trump’s case, the judge declined to include prosecutors’ suggestions that would have made a conviction almost certain.
However, no judge is perfect. At times during the trial, Judge Merchan appeared to lose his temper, castigating the defense for arguments he considered frivolous or repetitive.
And Mr. Trump’s lawyers are expected to challenge Judge Merchan’s decision to keep the trial in Manhattan, where the former president is deeply unpopular, and endorse Mr. Bragg’s theory of the case.
The law required Mr. Bragg to demonstrate that Mr. Trump had caused a false entry in the records of a “business.” Mr. Trump’s lawyers could argue that no such company was involved. They said the documents belonged to Mr. Trump personally and not to his company.
The second crime – election law conspiracy – offers another possible avenue for Mr. Trump’s lawyers. The legal theory behind the lawsuits included not only an untested law, but also a complex combination of laws, one inserted inside the other like Russian nesting dolls.
This theory required Judge Merchan to provide the jury with Byzantine legal instructions.
“The more complex the jury instructions, the more likely they are to address appellate issues,” said Nathaniel Z. Marmur, a New York appellate lawyer. “And these are some of the most complex instructions imaginable.”
Long before the appeal is decided, Mr. Trump’s political fate will have been set. In the single day since the jury convicted him, campaign donations poured into his coffers and Mr. Trump singled out Election Day as the “real verdict.”
His opponent, President Biden, said the conviction alone would not thwart Trump’s presidency.
“There is only one way to stop Donald Trump from entering the Oval Office: through the ballot box,” he said.
News Source : www.nytimes.com
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