After a New York jury found former President Donald Trump guilty on Thursday of 34 counts of falsifying business records, the country is swirling with speculation over how he will challenge the conviction in court.
While some Trump surrogates conjecture the case could swiftly go to the Supreme Court, legal experts said it will likely play out in New York courts, in which a decision is not anticipated to be issued until after the election.
Trump will not be sentenced untilJuly 11, just days before he likely becomes the GOP nominee for president at the Republican National Convention in Milwaukee, Wisconsin. The former president’s immediate legal move will be to start the appeals process, which he can do within 30 days of his sentencing.
“The Soros-backed Manhattan D.A.’s ‘case’ against President Trump was a disgraceful scam from the very beginning,” Trump campaign spokesman Steven Cheung told theWashingtonExaminerin a statement. “President Trump will quickly appeal on numerous grounds and will ultimately prevail because he did nothing wrong. The American People know this trial was a rigged, Radical Democrat hoax and they are far too smart to fall for the falsehoods and fabrications spewed by Crooked Joe Biden and his cronies. Democrats are now freaking out because their lawfare campaign against President Trump has backfired in the polls. On November 5th, the American People will render the real verdict at the ballot box and we will Make America Great Again.”
One of Trump’s widely speculated legal strategies could be to ask the U.S. Supreme Court to bypass New York’s courts. Sherif Girgis, an associate professor at Notre Dame Law School, said Trump’s best legal argument would be that the New York court violated his federal rights under the Constitution, including the 6th Amendment right to a fair trial by jury, convincing the high court to take up the case immediately.
While some lawyers said this is a long-shot strategy, it is an option for Trump’s legal team.
Generally, the Supreme Court does not second-guess a state court’s interpretation of the law because state courts determine state law questions. However, the Supreme Court can intervene if it believes the state’s decision may be inconsistent with the Constitution.
Trump could argue that state courts are not in a position to issue an authoritative ruling on a federal constitutional matter on the 6th Amendment and due process and that waiting on New York’s state courts to issue a ruling wouldn’t help or affect the Supreme Court’s decision.
The basis of his argument could rest on allegations that Trump was deprived of due process and his right to a fair trial by jury under the 6th Amendment. New York Judge Juan Merchan allegedly told the jurors that they “must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means,” citing New York state law, but that they need not be unanimous as to what the unlawful means were.
Historically, the success rate of asking the Supreme Court to bypass state courts hasn’t been strong. When special counsel Jack Smith asked the Supreme Court to bypass the D.C. Circuit’s courts for Trump’s presidential immunity case, the Supreme Court didn’t decide as quickly as it could have. On Dec. 11, 2023, Smith filed his request for the Supreme Court to take the case without waiting for the D.C. Circuit. The court didn’t deny his request on Dec. 22.
If the high court were to hear the case, by normal procedure, it could take months to reach a decision. But it doesn’t have to. In some extraordinary cases, the Supreme Court has issued a ruling far sooner.
In the 1971 Pentagon Papers case, the Supreme Court issued a ruling only two weeks after the Nixon administration filed a lawsuit in U.S. district court.
Should the court deny a request, the New York State Supreme Court, Appellate Division, First Department court will not hear the case until after Trump’s sentencing on July 11. This timeline makes it possible that even the intermediate court couldn’t come to a decision before the election.
Girgis said the New York courts will be where Trump’s legal appeal process most likely will play out. After Trump’s sentencing, he can move forward with filing a case with the intermediate court. It will probably take three or four weeks, even on an expedited track for Trump, and the prosecutor, to file their briefs.
In his arguments to New York courts, Trump is likely to allege Merchan made an error in allowing Stormy Daniels’s salacious evidence to stand, saying it was out of the bounds of the scope of the trial and prejudiced jurors. According to Merchan’s rebuff at the time, the details Daniels offered about the alleged affairs were “unnecessary” to prosecute the case. However, the doctrine of harmless error, in which a court finds a trial judge’s error was not damaging enough to the appealing party’s right to a fair trial to justify reversing the judgment or to warrant a new trial, could prove challenging for the Trump team to overcome.
The Trump legal team could also argue that Merchan’s daughter, an executive at a top marketing firm for Democratic politicians, presented a conflict of interest for the judge.
After the briefs are filed, a hearing will be scheduled. Once the judges hear arguments from Trump’s lawyers and the prosecutor, it will take them time to decide and prepare an opinion. The earliest New York’s intermediate court might issue a decision is October, even on a fast track.
In an alternate scenario, Trump could ask New York’s highest court, the New York Court of Appeals, to bypass the intermediate court and take the case. This would be unusual, but the Trump legal team could argue that this is a unique case of extraordinary public interest that requires prompt resolution, making it advisable to get a decision from the highest court in the state as quickly as possible.
Legal experts have told the Washington Examiner that the chances are high that the case could be heard and argued in the Court of Appeals before the election in November. The chances of the decision being issued before the election are slim, although there is a possibility it could happen.
The case will be further complicated in the scenario that a court rules against Trump after the election and Trump wins the presidency.
As president, Trump could ask the court to delay the case until after his term, arguing the case would be a distraction from carrying out his presidential duties.
In 1997, then-President Bill Clinton made this argument before the Supreme Court to delay Paula Jones’s sexual harassment lawsuit against him.
While the Supreme Court denied Clinton’s request, his was a civil case. Trump has been criminally convicted, making his chances of it being delayed much stronger.
In the scenario that the court rules against Trump after the election and Trump loses the presidency, the case would play out in the normal court process, although not necessarily on an expedited timeline.
If the former president were to lose the case in New York’s Appellate Division, First Department and loses in the New York Court of Appeals, he could appeal to the Supreme Court.
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Legal experts said jail time is highly unlikely for the former president. Whatever happens, the judge will almost certainly say he can post bail or wait until the appeals process plays out. This is a nonviolent, white-collar, first-offense crime. Generally, those types of crimes do not get jail time.
All legal scenarios are based on a timeline of what could be done quickly rather than a guarantee of how fast the court system will move.
