Former president Donald Trump was convicted on 34 felony charges on Thursday for falsifying business records, but legal experts say the case is far from settled – and unlikely to wrap up before the November election.
Speaking outside the courthouse on Thursday, Trump proclaimed, “This is far from over.”
A lengthy appeals process is likely to begin very soon, says Zack Smith, a former assistant U.S. Attorney in the Northern District of Florida and a senior legal fellow at the Heritage Foundation.
A normal appeals process would see the case work its way through the New York State courts, where Trump’s legal team will bring forward errors that arose in the trial under state and federal constitutional law. But Trump’s team is likely to ask the U.S. Supreme Court to intervene quickly to resolve his appeal as it will likely rest on federal constitutional law – not state law, which would fall under the jurisdiction of state courts.
Still, Smith says he would not expect the appeals process to be sorted out by the November election. Sentencing in the case will not even take place until July 11 — just four days before the Republican National Convention kicks off in Milwaukee.
Nonetheless, Trump has “strong grounds for appeal,” John Yoo, former deputy assistant attorney general for the Office of Legal Counsel under the George W. Bush administration, said.
Smith agreed, saying there are “many grounds for appeal” that Trump’s team will likely raise, including the jury instructions and the theory Bragg relied on to elevate misdemeanor bookkeeping offenses into felony offenses. Other avenues of appeal could center on the exclusion of certain testimony during the trial, including from former Federal Election Commissioner Brad Smith, and the inclusion of testimony that featured “salacious details” involving adult film star Stormy Daniels.
Yoo, for his part, is skeptical of Trump’s odds in appealing on the basis of the judge’s rulings on evidence, but argued that the “denial of Trump’s legal rights are perfectly set up for appellate review.” Among those rights: whether the government gave him clear notice of the criminal charges and whether Manhattan district attorney Alvin Bragg violated the Constitution by attempting to enforce federal election and tax law, which is only within the power of DOJ and other federal agencies.
The prosecution argued that Trump, his former fixer and attorney Michael Cohen, and National Enquirer publisher David Pecker participated in a conspiracy to defraud voters ahead of the 2016 presidential election by paying off women to conceal embarrassing stories about the then-presidential candidate’s sexual history, without properly recording those payments as campaign-finance expenses. The prosecution had to prove that Trump falsified the business records in order to conceal an underlying crime, in this case, a conspiracy to defraud the American people.
In any case, a conviction for Trump is unlikely to result in prison time, Syracuse law professor Gregory Germain told National Review earlier this week.
“In the real world, if this was not Trump… I think there’s basically zero chance that they would send this person” to prison,” he said, suggesting the former president is likely to be sentenced to probation.
Though he faces up to four years in prison, sentencing Trump to prison would be an “extraordinary thing to do” for first-time, nonviolent, Class E felony charges, Germain said.
A prison sentence would “create an incredible constitutional crisis in the middle of an election… and my guess it the appellate courts would feel a lot of pressure to intervene quickly to address the prison sentence,” he said.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, said she also finds a prison sentence to be “unlikely.”
“Though in Donald Trump’s case, a lack of remorse and repeated violations of the gag order could convince the judge otherwise,” she said.
Germain disagreed, however, saying it’s possible but unlikely that the judge would sentence Trump to prison time as punishment for repeated violations of the gag order against him. “I guess it’s possible, but it makes him look biased. I think he’s worried about looking biased because that makes it more likely that his trial won’t be upheld,” he said.
Smith said he would expect Trump to be sentenced to probation but issued a caveat: “I think anyone looking at this recognizes that this type of case brought by this prosecutor, Alvin Bragg, it never would have been brought against anyone else whose name wasn’t Donald Trump. And so I think the normal expectations to some extent go out of the window when you consider that background.”
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