Former President Donald Trump has a number of grounds on which to appeal his conviction, including many involving the judge, but he’s not litigating in the friendliest venue, legal experts told the Daily Caller News Foundation.
Trump vowed to appeal after a Manhattan jury convicted him Thursday on all 34 falsifying business records charges in the case brought by Democratic District Attorney Alivin Bragg. Though the wide range of issues that came up during the trial should lead to a reversal of Trump’s conviction, it’s possible he will face challenges in a state court system run by Democrat appointees, legal experts said.
“If the New York judicial system were not so infected with politics and partisanship, as demonstrated by Judge[Juan] Merchan, the court of appeals would certainly throw out this conviction,” Hans von Spakovsky, senior legal fellow and Election Law Reform Initiative manager at the Heritage Foundation, told the DCNF. “If the New York state courts refuse to do so despite the prejudicial errors and misfeasance by the judge and prosecution, then Trump should be able to appeal to the U.S. Supreme Court.”
Trump has so many issues he can raise that his brief for the appeal will be as long as “War and Peace,” he said.
Any appeal would first be considered by New York’s Appellate Division, First Judicial Department and then could be appealed to New York’s highest court. After that, it could go all the way to the Supreme Court.
Just one of the 21 justices in the appellate division were appointed by a Republican governor.
“The appellate courts recently overturned the Harvery Weinstein conviction for errors that occurred during trial, so even though the court is largely expected to be hostile to Trump, they do have a recent history of overturning high profile cases,” former federal prosecutor Andrew Cherkasky told the DCNF.
Trump has “a cornucopia of issues” to raise that span the entirety of the trial, “including pretrial rulings, rulings during the case, and even the propriety of Judge Merchan remaining on the case after being challenged for his apparent conflict of interest,” Cherkasky said.
Merchan donated $15 to President Joe Biden’s campaign in 2020. His daughter also runs a political consulting firm that provides services to Democratic clients like Democratic California Rep. Adam Schiff.
Trump’s attorneys tried to have Merchan recuse himself from the case, but he declined. One of the biggest issues is also the most basic: not putting Trump’s team on notice of what crime Bragg’s team was relying on to elevate what is typically a misdemeanor charge to a felony.
“Specifically, the judge did not require the jury to be unanimous in their theory of the escalating crime which seems to violate basic notions of due process requirements for notice,” Cherkasky said. “The defense repeatedly complained to the judge about the lack of notice regarding the theory of the escalating criminal act and were left to defend a case not knowing how the judge would instruct the jury until after all of the evidence was presented.”
Prosecutors alleged the payment to Stormy Daniels was part of a broader conspiracy to influence the election through “unlawful” means. They put forward three theories of what those crimes could be — a violation of campaign finance laws, falsifying other business records or a tax law violation — but Merchan’s instructions did not require jurors to agree on the “unlawful” means.
Other issues Trump could raise include the judge’s decisions to limit the testimony of Robert Costello, who the defense called to impeach former Trump attorney Michael Cohen’s testimony; and limit the testimony of their proposed expert witness, former Federal Election Commissioner Brad Smith, von Spakovsky said.
Stormy Daniels’ testimony, which provoked the defense to request a mistrial after she spoke in detail on the stand about her claimed affair with Trump, could also be significant in an appeal.
Trump is set to face sentencing before Merchan on July 11.
While first time offenders convicted of similar crimes would typically not be sentenced to prison time, legal experts previously told the DCNF they couldn’t rule out Merchan going down that path.
Still, any potential sentence could be paused during the appeal process.
Alan Dershowitz said Thursday on “The Dershow” that he didn’t think the conviction would be reversed by New York’s Appellate Division because the judges are “terrified of being perceived of as helping Trump in any way.”
