Former President Donald Trump has railed against his prosecution as unfair even before his latest criminal trial in New York began, but he’ll finally get a chance to make his case in a higher court as he faces an expected appeal of his felony conviction — a move that legal experts say could raise important legal questions even if it doesn’t secure him the Republican presidential nomination.
Trump was convicted on all 34 counts of falsifying business records to cover up a conspiracy to illegally interfere in the 2016 presidential election. The business records listed the payments to Trump’s former lawyer Michael Cohen as legal expenses in 2017. But a Manhattan jury concluded that the payments were actually to repay Cohen for hush money paid to keep porn star Stormy Daniels quiet about an alleged affair between Trump and the president.
“We are going to appeal this fraudulent act,” Trump declared at a news conference after the verdict.
Mitchell Epner, a former prosecutor and longtime New York litigation lawyer, said Marchan’s pretrial ruling on what evidence was allowed to be presented could be grounds for appeal, especially in light of a New York Appeals Court ruling during the trial that overturned the 2020 rape conviction of Hollywood’s Oscar-winning former producer, Harvey Weinstein.
“One of the largest convictions of one of New York’s wealthiest and most powerful men this century has been overturned,” Epner told USA Today.
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Below is a preview of what legal experts say will be the stronger arguments Trump will make in his expected appeal.
The Shadow of Harvey Weinstein
In Weinstein’s appeal, the New York Supreme Court Said They argued that the judge improperly admitted testimony from other women unrelated to the crimes charged and undermined Weinstein’s right to testify by ruling to allow cross-examination of those “unverified allegations.”
In Trump’s case, Judge Marchan also ruled that testimony and evidence beyond the crimes charged, including transcripts of the infamous “Access Hollywood” tapes in which Trump said he kissed women and grabbed their genitals without their consent. Said Prosecutors could have presented a transcript of the tape to make the case that Trump wanted to pay Stormy Daniels not to speak publicly about their alleged affair after the tape’s release threatened to jeopardize Trump’s support with female voters, but Judge Marchan ruled that even playing the tape was going too far.
Judge Marchan ruled that Trump could be cross-examined on a civil lawsuit alleging that he defamed New York author E. Jean Carroll and falsely inflated his assets to obtain loan and insurance relief, but not on a lawsuit alleging that he sexually abused Carroll. Pledged He was scheduled to testify in his own defense in the criminal case before the trial, but declined.
Epner said the Weinstein ruling could mean Trump has a chance because “this issue is so important, even in the most high-profile cases, it shows that there is a core group on the appeals court that believes the trial court got it wrong and will overturn it.”
But Epner added that there’s a good chance Marchan’s sentence will be upheld. “If I had to bet on one side or the other, I think their sentence will be upheld,” Epner said. “But I don’t think it’s an outright victory.”
The jury was not unanimous?
of Legal Instructions The jury’s explanation in Trump’s criminal case was not straightforward. They were told that to convict, they would have to find that Trump falsified business records. Moreover, to convict, they would have to find that the purpose of the falsifications was to conceal a conspiracy to illegally interfere in the 2016 election through one of three potentially criminal means: violating federal campaign finance laws, tax laws, or business records laws.
Judge Marchan also told the jury that while a “guilty” or “not guilty” verdict would require unanimity, a “guilty” verdict did not require the jurors to all agree on which of three options Trump engaged in illegal election interference.
On appeal, Trump could challenge the final jury instructions, arguing that the jury must reach a unanimous decision on what illegal conduct was involved in the election conspiracy case.
Karen Anifilo, a former prosecutor in the Manhattan District Attorney’s Office, told USA Today that she doesn’t expect Trump to win his arguments on appeal, but she doesn’t think they are frivolous.
Agnifilo likened the issue to the way jurors are instructed to evaluate burglary cases in New York, where a guilty verdict requires the jury to find that the defendant committed trespass with the intent to commit another crime, without agreement on what that other crime might be.
Agnifilo gave the example of a man who was caught coming through a door before he could do anything on the other side.
“He probably had zip ties, condoms, a safecracker, a mask and a bag to take his belongings. We don’t know what crime he was planning to commit, and we don’t need a unanimous jury to convict him,” Anifilo said.
State conviction for a federal crime?
Trump may also challenge whether Marchand was right to allow state criminal convictions to be based on federal crimes, saying violations of federal campaign finance and federal tax laws could provide basis for an illegal election conspiracy.
Shane Stansberry, a lecturer at Duke University Law School and former New York federal prosecutor, Said Ahead of the trial, the BBC reported that “it is unclear whether state prosecutors will be able to bring federal election crimes, as Mr Bragg intends to do.”
But Epner did not expect Trump to win this argument, because New York law places no limits on the crimes prosecutors can cite.
“It doesn’t say ‘state law,’ ‘federal law,’ or ‘U.S. law,'” Epner said.
Issues regarding judges
Trump’s legal team may also argue that Marchand was unfit to serve as judge and that the ruling should be overturned.
The Trump campaign had previously argued that Marchan should have recused himself because his daughter provided marketing services to Democratic political candidates and because Marchan donated $35 to the pro-Democratic group Act Blue in 2020, $15 of which went to Biden’s 2020 presidential campaign.
The New York Commission on Judicial Conduct dismissed a complaint against Marchan about the donations but issued a warning to the judge. report According to Reuters.
But long before the trial, the New York State Judicial Ethics Commission Decided “The committee found no room for doubt about Marchan’s impartiality on either issue. The committee said Trump’s daughter’s work is not relevant to his criminal case. It considered the donations “modest” and said it was “rare” for disqualification or disclosure to be required for political contributions made more than two years ago.
Lee Kowalski, a professor at the University of Texas School of Law, said the ruling suggests it is unlikely that Trump’s conviction will be overturned based on Marchant’s role in the case.
“While the donation may be improper, the chances that it will be an issue on appeal are virtually zero,” Kowalski said. I have written He is with LawFare, a nonprofit that provides analysis on legal and policy issues related to national security.
Kowalski noted that New York’s court system generally holds that appeals courts cannot interfere with a judge’s recusal decisions unless there is actual bias that would affect the outcome. “The Ethics Commission’s determination that there was not even an indication of bias renders the recusal issue entirely moot,” Kowalski wrote.
Trump’s lawyers did not respond to requests for comment.
