NEW YORK (Reuters) -Former President Donald Trump vows to appeal his historic conviction, with the focus likely on porn star Stormy Daniels’ salacious testimony about their alleged sexual encounter as well as the novel legal theory that prosecutors used in the case.
“We’re going to be appealing this scam,” Trump, the 2024 Republican candidate for president, said on Friday. He faces an uphill fight.
His defense lawyer Todd Blanche told CNN on Thursday that Trump would appeal after his July 11 sentencing date, meaning it is unlikely to be resolved before his Nov. 5 election rematch with Democratic President Joe Biden.
Twelve jurors found the real estate mogul-turned-politician guilty on Thursday of falsifying business records to cover up his former lawyer Michael Cohen’s $130,000 hush money payment to Daniels to illegally influence the 2016 election which he won.
Trump pleaded not guilty and denies having had sex with Daniels, whose given name is Stephanie Clifford. He argues the Manhattan District Attorney’s office, led by Democrat Alvin Bragg, brought the charges to derail his presidential campaign.
To succeed on appeal, Trump, 77, must demonstrate that Justice Juan Merchan made significant errors overseeing the trial.
If Trump’s appeal in New York state courts proves unsuccessful, he could appeal to the U.S. Supreme Court. Trump’s attorneys would have to persuade at least four of the court’s nine justices to hear his case.
To prevail, Trump would then have to demonstrate that the state prosecution violated his federal constitutional rights and that his legal team followed proper procedures during earlier stages of his legal proceedings.
Trump would not be able to bypass lower state courts to immediately appeal to the Supreme Court, but he might try to seek relief if, for example, he was subject to imprisonment in the middle of his election campaign.
The court’s 6-3 conservative majority includes three Trump appointees, and it has handled other Trump-related cases in ways that have proven helpful to his candidacy.
When the court agreed in late February to take up Trump’s claim that he has absolute immunity from prosecution for actions taken as president, they put off hearing the case until late April. That delay may prevent Trump’s Washington trial on federal election subversion charges, to which he has pleaded not guilty, from taking place before the election.
IS A MAGAZINE SPANKING RELEVANT?
On appeal, Trump’s lawyers will likely argue that Daniels’ testimony about a Lake Tahoe hotel encounter went into too much detail for a case that hinged on whether Trump falsified documents rather than on whether he had sex with Daniels.
On May 7, Daniels testified that she hit Trump’s backside with a rolled-up magazine and that he did not use a condom. She mentioned the position she said they were in. She said she “blacked out” and did not remember how her clothes came off, though she said she did not consume alcohol or drugs and never said “no” to Trump during the encounter.
Defense lawyer Todd Blanche twice asked Merchan to declare a mistrial based on her testimony, which he said prejudiced the 12-member jury.
“How can we come back from this in a way that’s fair to President Trump?” Blanche said outside the jury’s presence on May 7.
The judge denied both requests, in part because Blanche said in his April 22 opening statement that Daniels’ account of an encounter with Trump was false. Merchan said that entitled prosecutors to elicit testimony to establish her credibility.
Rebecca Roiphe, a professor at New York Law School, said none of Merchan’s decisions stood out as obvious mistakes, lessening Trump’s lawyers’ chances of getting the conviction overturned.
“I can’t imagine an appeals court would say the newspaper spanking warrants a reversal,” said Roiphe, a former prosecutor with the Manhattan District Attorney’s office.
NOVEL THEORY
Besides Daniels’ testimony, the defense could argue on appeal that the judge’s gag order restricting Trump’s public statements about witnesses violated his rights. Trump alluded to that on Friday, complaining about restrictions the judge imposed on potential testimony from an election law expert whom the defense ultimately opted not to call as a witness.
“We’re going to be appealing it on many different things. He wouldn’t allow us to have witnesses. He wouldn’t allow us to talk, he wouldn’t allow us to do anything,” Trump said.
The defense is also likely to argue the charges were themselves legally improper. Some legal experts have said that the case could be vulnerable to such a challenge because the prosecution’s legal theory has not been tested on appeal.
Falsifying business records on its own is a misdemeanor in New York, but it is elevated to a felony if done to further or conceal another crime.
In this case, prosecutors said Trump was seeking to cover up a conspiracy he and Cohen were involved in to promote a candidacy for public office through unlawful means, a misdemeanor in New York state. They say the hush money payment to Daniels was effectively a campaign contribution that exceeded the $2,700 limit on political donations in 2016.
In urging Merchan to dismiss the case last year, Trump’s lawyers argued that New York state law did not apply to federal elections.
Merchan allowed the case to go forward, but Boston University law professor Jed Shugerman said the law was ambiguous on that point, potentially posing an issue on appeal.
George Grasso, a retired New York state judge who attended the trial, said the defense would be unlikely to succeed in a challenge to that decision.
“They’ll try to appeal everything,” Grasso said but added he thought the judge’s decision was sound.
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