COLUMNS, COURTS, CRIMINAL LAWJune 3, 2024
Buzz Kill: The Trump Conviction Presents a Target-Rich Environment for Appeal 1/2 or 3
(Yes Professor Turley used that picture!)
Below is my column in the Hill on the most compelling grounds for an appeal in the Trump 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 thought the case was nearly un-winnable, even for those of us who previously saw a chance for a hung jury. Clarence Darrow would likely have lost with those instructions after the errors in the case by Judge Juan Merchan. At that point, it became a legal canned hunt. So the attention will now shift 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 kill environment of last week may then dissipate as theseglaring errorsare presented in higher courts.
Here is the column:
The conviction of former President Donald Trump in Manhattan of 34 felonies produced citywide celebrations. This thrill-kill environment extended to the media, where formerU.S. Attorney Harry Litman told MSNBC’s Nicolle Wallace that it was “majestic day” and “a day to celebrate.” When I left the courthouse after watching the verdict come in, I was floored by the celebrations outside by both the public and some of the media.
The celebrants would be wise to think twice before mounting this trophy kill on the political wall. The Trump 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 Trump receiving a fair trial in a district that voted roughly 90 percent against him.The problem was not the jury, but the prosecutors and the judge.
Some of the most compelling problems can bedivided into four groups.
The Judge
Acting Supreme Court justiceJuan Merchan was handpicked for this caserather than randomly selected. This is only the latest in a litany of Trump cases where Merchan has meted out tough rulings against Trump and his organization. With any other defendant, there would likely be outrage over his selection. Merchan donated to President Biden. Even though 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 Trump. Merchan’s daughter is also a Democratic organizer who has helped raise millions against Trump and the GOP and for the Democrats.
To his credit, CNN legal analyst Elie Honighas previously said that this case was legally dubious, uniquely targeted Trump and could not succeed outside of an anti-Trump district. On the judge, he recently challenged critics on the fairness of assigning a Biden donor who has earmarked donations for “resisting the Republican Party and Donald Trump’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 Trump, MAGA forever!”? “Absolutely not.”
What is equally disturbing is the failureof 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 withJudge Merchan but a record of highly biased decisions. In watching Merchan in the courtroom, I was shocked by his rulings as at times incomprehensible and conflicted.
The Charges
A leading threshold issue will be the decision to allow Manhattan District Attorney Alvin Bragg to effectivelytry Trump for violations of federal law. The Justice Department declined any criminal charges against Trump 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 theorynot 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….
https://jonathanturley.org/2024/06/03/buzz-kill-the-trump-conviction-presents-a-target-rich-environment-for-appeal/