May 31, 2024 - Politics & Policy

How Trump's appeal will play out

Photo iIllustration of Donald Trump behind a chessboard.

Photo illustration: Shoshana Gordon/Axios. Photo: Eduardo Munoz Alvarez-Pool/Getty Images

Former President Trump's legal team began outlining its appeal strategy within hours of his conviction in New York, but experts tell Axios it will be an uphill battle.

Why it matters: Appeals can be unpredictable, but given the timeline and the high bar to overturn the verdict, Trump will almost certainly still be a convicted felon on election day.

The timeline: Judge Juan Merchan gave both parties until June 13 to file motions in the case, which could include requests for him to re-examine some aspect of the case or verdict.

  • Trump's attorney Todd Blanche has said the defense will "vigorously fight" by filing motions in that window.
  • "That essentially has no possibility of success," Richard Serafini, a former federal and Manhattan prosecutor, told Axios, explaining that specific factors would have to be met, including new evidence or misconduct. "None of those exist in this case, at least to this point," he said.

What's next: Sentencing is set for July 11, after which Trump would have 30 days to file an appeal.

  • After a notice of appeal is filed, the case will go to the New York Appellate Division.
  • Once that court rules, the New York Court of Appeals — the state's highest court — can decide if it also wants to hear an appeal.
  • The Supreme Court could only get involved if some element of the appeal relates to the Constitution or federal law, which doesn't seem to apply, the experts said.

The big picture: The appeal process will take several months, making it very unlikely to conclude before November.

  • That could actually be good news for Trump. He'd likely remain free on bail in the meantime even if Merchan sentences him to prison. Some legal analysts believe probation is more likely as Trump was convicted of the least serious class of felony under New York law.
  • Serafini says Trump's odds of overturning the verdict are low. "Most appeals are denied," he told Axios. "Judges tend to get it right and this was an experienced judge."

Yes, but: "You never know what an appellate court is going to do," former federal prosecutor Neama Rahmani said.

  • The state's Appellate Division has been friendly to Trump before in his civil fraud case, Rahmani added.
  • Even the Court of Appeals, he said, "issued a really bizarre ruling recently where they overturned the conviction of Harvey Weinstein."

Zoom in: The defense arguments during appeal will likely include that the location and timing of the trial were unfair to Trump.

  • Blanche told CNN that every juror already knew who Trump was, and he doesn't "accept that this was a fair place to try" the former president.
    • However, "there's really no one in the entire country that hasn't heard of Donald Trump," Rahmani said. "So there's no place he could go that would have potential jurors that don't have some opinion about the former president."
  • As for the argument that it was unfair to try Trump in the run-up to the election, Serafini notes that the verdict came six months before votes will be cast, and the defense had some control over the timing.
  • Blanche also said he believes the trial was unfair for reasons including the testimonies of Stormy Daniels and Michael Cohen.
    • Serafini pointed out that the defense was able to cross examine them, and the jury determines credibility.

The intrigue: "The only potential area of appeal which might work is that this was something of a novel use of the statute involved," Serafini said.

  • The legal theory on which District Attorney Alvin Bragg brought the felony charges was previously untested. He had to prove that Trump falsified business records — a misdemeanor — with the "intent to commit another crime," in this case to promote his own electoral prospects by illegal means.
  • Trump allies argue he stretched the law to find a way to secure a conviction.
  • Still, Serafini added: "There's nothing really that I know in the statute that would preclude its use in this context."

Between the lines: House Speaker Mike Johnson's call for the U.S. Supreme Court to "step in" to overturn Trump's guilty verdict appears unlikely to come to fruition.

  • "In a federalist system, the United States Supreme Court can't review the New York Court of Appeals, which is New York's top court, and decide that they don't like the way New York's top court has determined and interpreted a law," Serafini said.
  • "There has to be some federal question, some federal violations, some federal issue that would grant the Supreme Court jurisdiction."

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