The One Big Problem With Trump's Felony Appeal
Trump's legal allies have high hopes for his appeal, but their best arguments all end with him still a criminal.
(Photo by Yuki Iwamura-Pool/Getty Images)
With the jury conviction settled, MAGAland legal analysts turn their lonely eyes to the appellate process where they swear they’ve got a plan to win. Some are even setting their sights on Captain Wrongway Flagpole swooping in to overturn the conviction — despite the Supreme Court having close to zero legal justification to act.
The appellate pivot has delivered some less than elegant commentary, with Trump’s lawyers sounding positively confused when trying to explain their handling of the defense so far. And there’s a good reason: the best legal case to be made for Donald Trump still politically ends in conceding to voters that he’s a criminal.
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Barring jury nullification, this case was always destined for the appellate process because there were never particularly compelling factual questions for the jury. Did Trump pay Stormy and then log it as a legal expense to hide it? Yes. Is that legally sufficient to convert the case to a class E felony? Not the jury’s job.
So how do Trump’s fans extricate their hero out this mess? Jonathan Turley bursts through the wall like MAGA Kool-Aid man to suggest JUDGE BIAS!!!
To his credit, CNN legal analyst Elie Honig has 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.”
Only a couple of bucks? Seems pretty fair over whatever Aileen Cannon’s doing. There are many Republican-appointed judges out there with ties to the party that can nonetheless run a professional courtroom. Plus, overturning a conviction because of “judge bias” requires, you know, something that altered the outcome of the case. But the folks flogging the “bias” claim seem loath to identify anything but generalized vibes.
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And Turley’s decision to hang his hat on Honig’s reasoning is rich. Honig has been, rightly, dragged to hell and back for his phoned-in coverage of this case.
Live by the hot take, die by the hot take.
Turley, amusingly if ill-advisedly, continues to advance appellate theories ranging from the idea that federal campaign violations cannot form the basis of a conviction because Trump wasn’t charged with them — not how this works — to the prejudicial impact of Stormy’s testimony about the sexual encounter, which was only brought in because THE DEFENSE decided to say she was lying about it in the opening.
Even with all of the reversible errors, some of us held out hope that there might be a hung jury. That hope was largely smashed by Merchan in his instructions to the jury. The court largely used standard instructions in a case that was anything but standard.
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Jonathan Turley is arguing that the problem in this case is that Trump was held to the same standard as any other defendant. Absolutely flawless work, prof.
However, the instruction also allowed for doubt as to what the jury would ultimately find. When the verdict came in, we were still unsure what Trump was convicted of.
Um… falsifying business records in the first degree. It actually says so pretty clearly. The argument Turley is trying to make is that the jury did not reach a unanimous verdict because it was instructed that — while it needed to unanimously agree that Trump falsified records with the intent to further another crime — it need not unanimously agree on which crime they thought Trump intended to further. But that’s why the case isn’t about those other crimes — it’s about FALSIFYING BUSINESS RECORDS.
This instruction is not nefarious and it’s truly amateur hour for a quote-unquote legal analyst like Turley to pretend it is. By way of analogy, this is akin to convicting someone of murdering their wife when one juror thinks he did it to collect on insurance and another thinks it was because of the affair. They don’t have to agree on the principle reason why the defendant intentionally killed the victim, just that they intentionally killed the victim. Proving one grand unifying motive is a big deal in lawyer TV, but it’s not actually necessary to secure a conviction.
Trump’s acolytes will talk about “bias” and the idea that the jury only relied on Michael Cohen’s testimony (insufficient as a matter of law because he’s an accomplice) and — paradoxically given the last point — that the jury was swayed by prejudicial Stormy Daniels testimony, but these are all red herrings. The judge bias claim is facially weak sauce and impossible to tie to anything but harmless error in the case; Cohen’s testimony was backed up by a metric shit ton (tonne?) of testimonial and documentary evidence; and the Daniels testimony only got in because Trump’s lawyers decided to impugn her credibility in the opening and then not object when she testified. — it’s all a mess of frivolity.
There’s only one remotely colorable argument to overturn this conviction. They might be able to successfully argue that the theories for converting false records into Class E felonies were a bridge too far as a matter of law. While not a slam dunk by any means, this is an entirely reasonable and potentially successful argument and — importantly for Trump’s lawyers — it could get his conviction tossed.
But none of Trump’s legal auxiliary wants to talk about that because, politically, it doesn’t disturb the fact that Trump still falsified business records. REPEATEDLY. And that’s very much a crime!
Every good out for Trump rests on the notion that the crime should be a tier lower and, if successful, it’s the epitome of what “law and order” hardliners would consider “getting off on a technicality.” Lawyers can all make fairly sanctimonious speeches about how technicalities shouldn’t be sneered at and are actually part of serving the greater cause of justice…
But that doesn’t really help Trump’s political case.
And Trump understands the conflation of the legal and political cases. It’s why the defense screwed itself by calling Stormy Daniels a liar and opening the door wide for prosecutors to solicit ugly details of the encounter to rehabilitate her credibility. They should have admitted to the affair but, likely, the client wouldn’t let them do it because his political case requires categorical denial. The proper legal narrative is “sure he committed a ton of criminal financial acts, but the prosecution is too late to bust him for those,” but that’s not a story that Trump’s people want in the headlines.
He falsified business records. There’s no real argument he didn’t. All they can say is that it should’ve remained a misdemeanor which solves Trump’s legal problem because he would no longer have a felony conviction, but at the cost of conceding for the voting public that he did cheat on his business records.
So Scharf and Blanche are going to keep appearing on TV to spin conspiracy theories about Joe Biden commissioning the CIA to build a life-like Juan Merchan mask while filing every cockamamie theory of appeal Trump hears about on Truth Social. While behind-the-scenes they’re going to pursue the only appeal that might possibly succeed and hope against hope everyone’s so confused about which is which that no one notices the big political hole in the strategy.
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
