What Happens if Trump Gets Convicted in New York?

by | May 3, 2024 | The Truscott Commentaries

New York State Court of Appeals in Albany, New York. Photo: Tyler A. McNeil, Wiki Commons

What Happens if Trump Gets Convicted in New York?

by | May 3, 2024 | The Truscott Commentaries

New York State Court of Appeals in Albany, New York. Photo: Tyler A. McNeil, Wiki Commons

If Trump gets convicted in his election interference "hush money" trial, of course he's going to appeal. But he can't go straight to "his" justices at the Supreme Court.

Republished with permission from Lucian K. Truscott IV

Well…the short answer is, Donald Trump will appeal his conviction. But here’s where it gets interesting. There is a way to appeal a criminal conviction in the state of New York. First, you file a notice of appeal. Then you file your appeal with the Appellate Division, which is the first appellate court to hear criminal cases in New York. In Trump’s case, that would be the First Department of the Appellate Division, hearing cases tried in Manhattan and the Bronx. If the conviction you’re appealing included a fine, you must either pay the fine in advance or post a bond guaranteeing the fine will be paid if you lose your appeal.

But you can’t just say…wait a minute, I’m innocent! I want to appeal! The problem for Trump and any other defendant found guilty of a crime is that there are not many grounds for appealing a criminal conviction in New York State. You can appeal based on a judge’s jury instructions, if they are incorrect on the law or prejudicial in some way. You can say there was prosecutorial misconduct in your case—a likely source of a Trump appeal if his remarks at his rallies are any indication of his plans. You can appeal on the basis of sentencing errors, but it’s doubtful that Judge Juan M. Merchan would make mistakes in sentencing the former President of the United States. Trump could appeal on the basis of ineffective assistance of trial counsel, and judging by reports that he is quite unhappy with his lead trial lawyer, Todd Blanche, he might throw that handful of spaghetti at the wall. And he could appeal based on improper inclusion or exclusion of evidence.

Every convicted felon has a right to file an appeal at the Appellate Division level. But if you lose that appeal, the only thing left to you is to file an appeal with the New York State Court of Appeals, the highest court of appeals in the state. The Court of Appeals doesn’t take many cases filed by defendants who lose at the Appellate Division, but hey! This is Donald Trump! The tendency would be to take his appeal, if only so you can Put On the Show, right?

The problem Trump has at the highest level of appeals is that no other court can overturn the interpretation of New York law by the Court of Appeals. 

Of course, if he loses an appeal with the Court of Appeals, Trump is going to be thinking that he doesn’t have any friends in New York, so where are his friends?

They’re on the U.S. Supreme Court, of course, because he put three of them there, “his” justices, he is said to call them. And the other three Republican appointees can be relied on as well, you would think if you were Trump. 

But the only way you can appeal a decision by the New York Court of Appeals is if your federal constitutional rights have been violated in some way. Boy, that’s a tough one. “Donald J. Trump repeatedly and fraudulently falsified New York business records to conceal crimes that hid damaging information from the voting public during the 2016 presidential election,” District Attorney Alvin L. Bragg said at the time of his indictment.

Trump is charged with committing felonies. That’s how he ended up in the Criminal Courts Building in Manhattan. But violating the laws regarding business records reporting in New York state is only a misdemeanor. How did Trump get charged with felonies? By falsifying and manipulating records in order to cover up another crime, and the other crime Trump was covering up was a violation of campaign finance laws. 

That’s why Michael Cohen is such an important witness. He was charged, along with a couple other crimes, with violating federal campaign finance laws. He pleaded guilty to one count of causing an unlawful campaign contribution, and one count of making an excessive campaign contribution. He went to jail for those crimes. So it would seem that they’ve got him, wouldn’t it? Trump, I mean. Cohen violated federal campaign finance laws, and the law Trump is charged with covering up is the law Cohen violated, and that is the law that stepped up his misdemeanor violations to become felonies.

Donald Trump has to ask permission to file an appeal with the Supreme Court by filing a petition of certiorari. It takes four justices to “accept cert,” as it’s called. Trump put three of the justices on the Supreme Court, so it would seem that he’s got them, meaning he needs only one more. Alito, anyone? Gorsuch?

But what are Trump’s grounds to say his constitutional rights were violated? Two words: Citizens United. That is the Supreme Court decision handed down in 2010 that made it legal for corporations, non-profits, labor unions, and other organizations and associations to spend money on electioneering communications and advocate for the election or defeat of political candidates.

Michael Cohen formed a shell company called Essential Consultants. It was a corporation. He opened an Essential Consultants bank account. He wrote a check on that account for the $130,000 that was used to pay off Stormy Daniels in the “catch and kill” scheme by the National Enquirer to buy her story and then bury it. 

Here’s what Trump’s lawyers are going to tell the Supreme Court. Citizens United found essentially that “money is speech” and so it’s a violation of the First Amendment to violate the freedom of speech of a corporation, because in the immortal words of Mitt Romney, “corporations are people, too!”

But how do you wrangle a payment to a porn star to shut her up and turn it into a violation of free speech? Trump’s lawyers will tell the Supreme Court that it’s not Stormy Daniels speech rights that are covered by Citizens United, it’s the free speech rights of Michael Cohen’s little Essential Consultants shell corporation. And they’ll take that decision one step further. They’ll probably make a case to the Supreme Court that you can violate free speech rights by keeping someone quiet because by giving citizens the right to speak freely, the First Amendment also gives them the right to remain silent.

Boy, that’s a stretch, isn’t it? But hey, stretching the law and reason and the truth is what the Supreme Court is all about when it comes to Donald Trump. We saw that in spades in the arguments last week on Trump’s claim of absolute immunity from prosecution. And remember, all Trump needs is one justice more than “his” three justices to get his appeal heard by the Supreme Court, and then one more justice than those four to get his conviction in New York State thrown out for violating his constitutional right to shut up a porn star by paying her money so he could get himself elected president in 2016.

I have only one thing left to say on this subject: stranger things have happened, when the name Donald Trump is attached to them.

Lucian K. Truscott IV

Lucian K. Truscott IV

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.

You can read Lucian Truscott's daily articles at luciantruscott.substack.com. We encourage our readers to get a subscription.

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