NEW YORK — “This is far from over,” Donald Trump, the former president and current felon, declared Thursday, shortly after a Manhattan jury convicted him on 34 charges of falsifying records to cover up a sex scandal.
Trump, the presumptive Republican nominee, is counting on the jury not having the final say on the case. He has already outlined a plan to appeal a verdict that he called a “scam” on Friday.
But even if the former — and possibly future — president could convince voters to ignore his conviction, the appeals courts might not be so sympathetic. Several legal experts doubted his chances of success, noting that it could take years for the case to filter through the courts, so he will still be a felon when voters go to the polls in November.
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And so, after a five-year investigation and a seven-week trial, Trump’s legal odyssey in New York is just beginning.
The former president’s supporters are calling on the U.S. Supreme Court to intervene, though that is highly unlikely. In a more likely appeal to a New York court, Trump would have options to challenge the conviction, experts said, but far fewer than he has claimed. The experts noted that the judge, whose rulings helped shape the case, had removed some of the prosecution’s most tenuous arguments and evidence from the trial.
The appeal will be a referendum on the judge, Juan M. Merchan, who guided the trial through political and legal minefields even as Trump hurled abuse at him and his family. Merchan, a no-nonsense former prosecutor, said he was well aware of and protected Trump’s rights, including his right to “defend himself from political attacks.”
Mark Zauderer, a veteran New York litigator who serves on a committee that screens candidates for the same court that will hear Trump’s appeal, said Merchan avoided pitfalls that often lead to convictions.
“This case has none of the usual warning signs of reversal on appeal,” Zauderer said. “The judge’s attitude was impeccable.”
Even if Merchan’s statements provide little fodder, Trump could challenge the basis of the prosecutor’s case. Trump’s lawyers note that Manhattan District Attorney Alvin L. Bragg used a new theory to charge Trump with 34 felonies for falsifying company records.
In New York, that crime is a misdemeanor unless the records are falsified to conceal another crime. In elevating the charges to felonies, Bragg argued that Trump falsified the records to cover up violations of a little-known state law against conspiring to win elections by “unlawful means.”
Trump’s conspiracy took place during his first attempt to run for the White House. When Trump arranged to buy and bury damaging stories about his sex life, including a porn actor’s story about a tryst, he was trying to influence the 2016 election, Bragg said.
Trump’s lawyers are expected to argue on appeal that Bragg improperly expanded the state’s election law — a complicated law — to cover a federal campaign. And they might argue that the False Documents Act itself doesn’t apply to Trump’s case.
“I certainly don’t think there has ever been a prosecution for falsifying corporate documents like this,” said Barry Kamins, a retired judge and criminal procedure expert who teaches at Brooklyn Law School. “This is all uncharted territory as far as an appellate matter goes.”
None of this criticism will surprise Bragg, a career prosecutor who has shown himself to be comfortable with innovative applications of the law. Bragg’s appellate chief, Steven Wu, a fast-talking trial attorney, attended much of the trial. When the verdict was read, he sat in the second row, to Bragg’s right.
It is now Wu’s job to ensure that Trump does not escape conviction.
Throughout his life in legal gray areas, Trump has developed a knack for delaying or dodging criminal consequences. Just as law enforcement authorities appear to be watching him, and his opponents assume he is in trouble, Trump will prevail.
In his four years as president, Trump survived two impeachments, a federal investigation and an investigation by a special counsel. In his post-presidential life, he has been indicted four times in four different cities, but three of those cases are delayed, thanks in part to the U.S. Supreme Court.
He was ‘Teflon Don’ to enemies and friends alike.
But now, like every other criminal defendant in New York, the game is against him. Appellate courts generally frown on overturning jury decisions, barring some egregious errors or misconduct.
Merchan will condemn Trump on July 11, just days before he attends the Republican National Convention to be anointed as the party’s presidential nominee. The judge can sentence him to four years in prison or simply impose probation.
The sentencing will trigger a 30-day period during which Trump can file an appeal. That notice is merely a legal stake in the ground. Trump will then have to file the actual appeal with the Appellate Division, 1st Department of the State of New York. The appeals court panel of judges will most likely not hear arguments until next year and may not make a decision until early 2026.
And that won’t necessarily be the last word. Trump or Bragg’s office could ask the New York Court of Appeals, the state’s highest court, to review the decision.
Trump may also have one last option: the U.S. Supreme Court. Trump, who had already tried and failed to take the case to federal court, could try again if he were elected.
It would be a long shot. Procedurally, it is extremely difficult for a state defendant to reach the Supreme Court without exhausting state appeals.
“This is a garden variety state court conviction,” Zauderer said. “I don’t see a plausible path to the Supreme Court.”
Yet the court has shown sympathy for Trump in one of his other criminal cases. And in an appearance on Fox News on Friday, Republican House Speaker Mike Johnson argued that the justices should take up Trump’s case.
“I think the judges on the court — I know many of them personally — I think they are deeply concerned,” said Johnson, a Trump ally. “I think they will get this right, but it will take a while.”
During his news conference at Trump Tower on Friday, Trump laid out a blueprint for his call, airing a litany of grievances about Merchan, whom he called “a tyrant.”
“He didn’t allow us to have any witnesses, let us talk, or let us do anything,” Trump claimed, adding that witnesses were “literally crucified by this man who looks like an angel but is actually a devil.”
Those accusations were false. Merchan did not ban Trump from calling witnesses, although he did limit the testimony of a defense expert who was scheduled to testify on election law but ultimately never took the stand. (Merchan determined that the expert’s testimony about the law would infringe on the judge’s own responsibility.)
Trump also claimed that Merchan effectively prevented him from testifying in his own defense. The judge, he said, would have allowed prosecutors to question him about his past legal troubles and “everything I’ve ever been involved in.”
That was a significant exaggeration.
Defendants routinely base their appeals on a judge’s decision about the extent to which prosecutors can cross-examine them. They also often claim that judges have allowed evidence outside the scope of the indictment. But Merchan refused to let the prosecutor introduce all kinds of damaging evidence about Trump, including allegations that he sexually assaulted women.
Both issues were at the heart of the Court of Appeal’s recent decision to overturn the sex crimes conviction of Harvey Weinstein, the former Hollywood producer. Still, Kamins, one of the lawyers handling Weinstein’s appeal, said they wouldn’t give Trump the chance.
Merchan, who began each trial day with a “good morning” to Trump, occasionally scolded him for misbehaving in court or violating a gag order banning attacks on witnesses and jurors. But he did so outside the presence of the jurors.
As the porn actor, Stormy Daniels, sat in the stand and Trump muttered “nonsense,” the judge waited until the jury left before summoning a lawyer to the hearing. “I’m speaking to you here in court because I don’t want to embarrass him,” the judge told Trump’s attorney, Todd Blanche.
Merchan leaned in as Trump repeatedly violated the gag order.
“Mr. Trump, it is important to understand that the last thing I want to do is put you in jail,” he said. “You are the former president of the United States and possibly the next president.”
Merchan also reined in prosecutors’ efforts to lower the legal bar for Trump’s conviction. In his instructions to the jury on how to apply the law to Trump’s case, the judge declined to include suggestions from prosecutors that would have led to an almost certain conviction.
Yet no judge is perfect. At times during the trial, Merchan appeared to lose his patience and berated the defense for arguments he considered frivolous or repetitive.
And Trump’s lawyers are expected to challenge Merchan’s decision to hold the trial in Manhattan, where the former president is deeply unpopular, and bless Bragg’s theory of the case.
The law required Bragg to prove that Trump had caused a false entry in the records of “a corporation.” Trump’s lawyers could argue that there was no such undertaking. They believe the documents belonged to Trump personally, not his company.
The second crime – election conspiracy – offers Trump’s lawyers another possible avenue. The legal theory underlying the prosecution involved not only untested laws, but also a complex combination of laws, each stuffed together like Russian nesting dolls.
This theory required Merchan to give the jury Byzantine legal instructions.
“The more complex the jury instructions, the more likely they are to tolerate appellate issues,” said Nathaniel Z. Marmur, a New York attorney. “And these are some of the most complex instructions you can imagine.”
Long before the appeal is decided, Trump’s political fate will be determined. On the only day since the jury convicted him, campaign donations have poured into his coffers, with Trump calling Election Day the “real verdict.”
His opponent, President Joe Biden, said the conviction alone would not thwart a Trump presidency.
“There is only one way to keep Donald Trump out of the Oval Office: through the ballot box,” he said.
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