Since even before his recent New York criminal trial began, former President Donald Trump has inveighed against his prosecution as unfair, and now that he is expected to appeal his felony conviction, he’ll finally get a chance to make that argument to a higher court. That appeal could raise significant legal arguments, even if there’s no slam dunk for the presumptive Republican presidential nominee, according to legal experts.
Trump was convicted on all 34 counts of falsifying business records in order to hide a conspiracy to unlawfully interfere in the 2016 presidential election. The business records characterized payments to former Trump lawyer Michael Cohen as 2017 legal expenses. In reality, a Manhattan jury concluded, the payments were reimbursing Cohen for hush money paid to keep porn star Stormy Daniels quiet about an alleged affair with Trump.
“We’re going to be appealing this scam,” Trump vowed in a press conference after the verdict.
Merchan’s pre-trial rulings on what evidence was allowed to be presented could be grounds for appeal, especially given a New York appellate decision during the trial overturned the 2020 rape conviction of former Hollywood Oscar-winning producer Harvey Weinstein, according to Mitchell Epner, a former prosecutor and long-time New York litigator.
“It overturned what was one of the biggest criminal convictions against one of the richest and most powerful people in New York this century,” Epner told USA TODAY.
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Here’s a preview of what legal experts said are the stronger arguments for Trump to raise in his expected appeal:
The shadow of Harvey Weinstein
In Weinstein’s appellate win, New York’s highest court said the trial judge improperly allowed testimony from other women whose stories weren’t part of the charged crimes, and that the judge undermined Weinstein’s right to testify by ruling he could be cross-examined on those “untested allegations.”
In Trump’s case, Merchan likewise made rulings that allowed testimony or evidence stretching beyond the charged crimes, such as the transcript of the infamous “Access Hollywood” tape in which Trump described kissing women without waiting for consent and grabbing their genitals. Merchan said the prosecution could bring in the transcript to make the case that Trump wanted to pay Stormy Daniels to prevent her from publicly discussing their alleged affair after fallout from the tape’s release endangered his standing with women voters. But Merchan ruled that playing the tape itself would go too far.
Merchan ruled during the trial that Trump could be cross-examined about court determinations in civil cases that Trump defamed New York writer E. Jean Carroll and fraudulently inflated his assets to get loan and insurance breaks, but not that Trump sexually abused Carroll. (Trump publicly pledged to testify in his defense in the criminal case before the trial, but he backed out.)
Epner said the Weinstein decision could mean Trump has a shot, because it “demonstrated that there are a core group of people on the Court of Appeals who think that this issue is so important that even in the most high-profile case, they will overturn it if they think the trial court has done it wrong.”
But, he added, Merchan’s rulings could very well be upheld. “If I had to bet on one side versus the other on that, I think that they would be affirmed,” Epner said. “But I don’t think it’s a slam dunk.”
Non-unanimous jury?
The legal instructions to jurors in Trump’s criminal case weren’t simple. Jurors were told that a guilty verdict required finding Trump falsified business records. Furthermore, a guilty verdict required finding that the purpose of the falsification was to hide a conspiracy to unlawfully interfere in the 2016 election through one of three potential criminal avenues: violating federal campaign finance laws, violating tax laws, or violating business records laws.
In addition, Merchan told jurors a “guilty” or “not guilty” verdict needed to be unanimous, but that a “guilty” verdict didn’t require them all to agree on which of the three options for unlawful election interference Trump committed.
Trump could challenge that last jury instruction on appeal, arguing jurors should have been required to be unanimous about what kind of unlawful behavior was involved in the election conspiracy.
Karen Agnifilo, a former prosecutor in the Manhattan District Attorney’s Office, told USA TODAY she doesn’t expect Trump to win that argument on appeal, but she also doesn’t think it’s frivolous.
Agnifilo compared the issue to how jurors are instructed to evaluate burglary cases in New York, where a guilty verdict requires a jury to find the defendant committed an unlawful trespass with the intent to commit another crime, without needing to agree on what that other crime is.
Agnifilo gave the example of a man who was caught walking in the door, before he could do anything beyond the door.
“Maybe he had zip ties, condoms, and a safe cracker, and a mask and a bag to carry stuff away in – we don’t know what crime he was going to do, and a jury doesn’t have to find unanimously,” Agnifilo said.
State conviction based on a federal crime?
Trump could also challenge whether Merchan was right to allow an underlying federal crime to give rise to a state criminal conviction. Merchan said the violation of federal campaign finance laws or federal tax laws could be the basis for the unlawful election conspiracy.
Shane Stansbury, a Duke Law School lecturer and former New York federal prosecutor, told the BBC ahead of the trial that it was “unclear if a state prosecutor can invoke a federal election crime, as it appears Mr Bragg intends to do.”
However, Epner didn’t expect Trump to win on this argument given that New York law doesn’t place any restriction on the crime prosecutors can point to.
“It doesn’t say ‘state law.’ It doesn’t say ‘federal law.’ It doesn’t say ‘U.S. law,'” Epner said.
Issues with the judge
Trump’s legal team could also argue that the verdict should be tossed out because Merchan had no business presiding over the trial.
Trump’s team has previously argued that Merchan should have recused himself because Merchan’s daughter has provided marketing services for Democratic political candidates, and because he made a $35 contribution to a Democratic-aligned entity in 2020, ActBlue, with $15 of that contribution designated for the 2020 Biden presidential campaign.
A New York commission that reviews judicial conduct dismissed a complaint against Merchan regarding the donation, although it did still caution the judge, as first reported by Reuters.
However, long before the trial the New York State Advisory Committee on Judicial Ethics’ determined that Merchan’s impartiality couldn’t be reasonably questioned based on either issue. The committee said Trump’s criminal case didn’t involve the daughter’s work. The committee characterized the contribution as “modest” and and said it “seldom” requires disqualification or disclosure based on political contributions that are more than two years old.
That determination suggests Trump is unlikely to get the conviction tossed out based on Merchan’s role in the case, according to University of Texas law professor Lee Kovarsky.
“The donation might be improper, but there’s virtually zero chance that it matters on appeal,” Kovarsky wrote in LawFare, a nonprofit that provides analysis on legal and policy issues related to national security.
Kovarsky said the New York court system generally insists appellate courts can’t intervene over a judge’s recusal decision unless there was actual bias that impacted the result. “In the face of the Ethics Committee finding that there’s not even an appearance of bias, any recusal issue is a nonstarter,” Kovarsky wrote.
Lawyers for Trump didn’t respond to a request for comment.
