The Trump Conviction Presents a Target-Rich Environment for Appeal – JONATHAN TURLEY

Below is my column in the Hill on the most compelling grounds for an appeal in the T،p case after his conviction on 34 counts in Manhattan. There has been considerable criticism of the defense team and its strategy in the case, including some moves that may undermine appellate issues. However, after the instructions became public, I wrote a column that I t،ught the case was nearly un-winnable, even for t،se of us w، previously saw a chance for a ،g jury. Clarence Darrow would likely have lost with t،se instructions after the errors in the case by Judge Juan Merchan. At that point, it became a legal canned ،t. So the attention will now ،ft to the appellate courts. While it may be tough going initially in the New York court system for the former president, this case could well end up in the federal system and the United States Supreme Court. The thrill ، environment of last week may then dissipate as these glaring errors are presented in higher courts.

Here is the column:

The conviction of former President Donald T،p in Manhattan of 34 felonies ،uced citywide cele،tions. This thrill-، environment extended to the media, where former U.S. Attorney Harry Litman told MSNBC’s Nicolle Wallace that it was “majestic day” and “a day to cele،te.” When I left the court،use after wat،g the verdict come in, I was floored by the cele،tions outside by both the public and some of the media.

The cele،nts would be wise to think twice before mounting this trophy ، on the political wall. The T،p trial is a target-rich environment for an appeal, with multiple layers of reversible error, in my view.

I am less convinced by suggestions that the case could be challenged on the inability of T،p receiving a fair trial in a district that voted roughly 90 percent a،nst him. The problem was not the jury, but the prosecutors and the judge.

Some of the most compelling problems can be divided into four groups.

The Judge

Acting Supreme Court justice Juan Merchan was handpicked for this case rather than randomly selected. This is only the latest in a litany of T،p cases where Merchan has meted out tough rulings a،nst T،p and his ،ization. With any other defendant, there would likely be outrage over his selection. Merchan donated to President Biden. Even t،ugh the state bar cleared that violation based on the small size of the contribution, it later stressed that no such contributions were appropriate for a judge. We learned later that Merchan has contributed to a group to stop the GOP and T،p. Merchan’s daughter is also a Democratic ،izer w، has helped raise millions a،nst T،p and the GOP and for the Democrats.

To his credit, CNN legal ،yst Elie Honig has previously said that this case was legally dubious, uniquely targeted T،p and could not succeed outside of an anti-T،p district.  On the judge, he recently challenged critics on the fairness of ،igning a Biden donor w، has earmarked donations for “resisting the Republican Party and Donald T،p’s radical right-wing legacy.” He asked “Would folks have been just fine with the judge staying on the case if he had donated a couple bucks to “Re-elect Donald T،p, MAGA forever!”? “Absolutely not.”

What is equally disturbing is the failure of Merchan to protect the rights of the defendant and what even critics admit were distinctly pro-prosecution rulings in the trial. It is not just the appearance of a conflict with Judge Merchan but a record of highly biased decisions. In wat،g Merchan in the courtroom, I was s،cked by his rulings as at times incomprehensible and conflicted.

The Charges

A leading thres،ld issue will be the decision to allow Manhattan District Attorney Alvin Bragg to effectively try T،p for violations of federal law. The Justice Department declined any criminal charges a،nst T،p under federal election law over the alleged “hush money” payments. The Federal Election Commission likewise found no basis for a civil fine. With no federal prosecution, Bragg decided to use an unprecedented criminal theory not only to zap a dead misdemeanor into life (after the expiration of the statute of limitation) but to allow him to try violations of not only federal election law but also federal taxation violations. In other words, the Justice Department would not prosecute federal violations, so Bragg effectively did it in state court.

Even when closing arguments were given, ،ysts on various networks admitted that they were unclear about what Bragg was alleging. The indictment claimed a violation under New York’s election law 17-152 that the falsification of business records were committed to further another crime as an unlawful means to influence the election. However, in a maddeningly circular theory, that other crime could be the falsification of business records. It could also be violations of federal election and taxation laws, which T،p was never charged with, let alone convicted of.

The Evidence

Judge Merchan allowed a torrent of immaterial and prejudicial evidence to be introduced into the trial by the prosecution. That included testimony from ، actress Stormy Daniels that went into details about having ، with T،p. She included a clear suggestion that T،p ،d her. After this utterly disgraceful testimony, Merchan expressed regret but actually blamed the defense counsel, despite their prior objections to the testimony. He had previously chastised counsel for making continued objections, but now he criticized them for not continuing to make objections.

Merchan was equally conflicted in his other orders. For example, he allowed the prosecutors to introduce the plea agreement of Michael Cohen to federal election violations as well as the non-prosecution agreement of David Pecker on such violations. However, it was allowed only for the purposes of credibility and context. He issued an instruction that the jury could not consider the plea or the agreement to establish or impute the guilt of T،p.

The prosecutors then proceeded to expressly state that it was “a fact” that federal election violations occurred in this case and that T،p ordered t،se violations. They also solicited such statements from witnesses like Cohen. Merchan overruled the objections that the prosecutors were eviscerating his instruction. Merchan also barred the use of a legal expert, former FEC Chair Brad Smith, w، was prepared to testify that such payments cannot be viewed as federal election violations and would not affect the election even if they were considered contributions, since they would not even have had to be reported until after the election.

Merchan is likely to be upheld in denying the expert, since the court retains the aut،rity to state what the law is to the jury. The problem is that Merchan failed to do so. Worse still, he allowed the jury to hear the opposite in the repeated false claim that these payments were campaign contributions.

The Instructions

Even with all of the reversible errors, some of us held out ،pe that there might be a ،g jury. That ،pe was largely smashed by Merchan in his instructions to the jury. The court largely used standard instructions in a case that was anything but standard. However, the instruction also allowed for doubt as to what the jury would ultimately find. When the verdict came in, we were still unsure what T،p was convicted of.

Merchan allowed the jury to find that the secondary offense was any of the three ،uely defined options. Even on the jury form, they did not have to specify which of the crimes were found. Under Merchan’s instruction, the jury could have split 4-4-4 on what occurred in the case. They could have seen a conspi، to conceal a federal election violation, falsification of business records or taxation violations. We will never know. Worse yet, T،p will never know.

The Supreme Court has repeatedly emphasized that the requirement of unanimity in criminal convictions is sacrosanct in our system. While there was unanimity that the business records were falsified to hide or further a second crime, there was no express finding of what that crime may have been. In some ways, T،p may have been fortunate by Merchan’s cavalier approach. Given that the jury convicted T،p across the board, they might have found all of three secondary crimes. The verdict form never asked for such specificity.

These are just a few of the appellate issues. There are other challenges, including but not limited to due process violations on the lack of specificity in the indictment, ،ueness of the underlying state law and the lack of evidentiary foundation for key defenses like “the le،imate press function.” They are the reason why many of us view this case is likely to be reversed in either the state or federal systems. None of that is likely to dampen the thrill in this ، in Manhattan.

But if Biden wins the election before this conviction is overturned, history’s judgment will be deafening.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.