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 these glaring errors are 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 former U.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 be divided into four groups.
The Judge
Acting Supreme Court justice Juan Merchan was handpicked for this case rather 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 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.”
What is equally disturbing is the failure of 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 with Judge 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 effectively try 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 theory not 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.
Even when closing arguments were given, analysts on various networks admitted that they were unclear about what Bragg was alleging. The indictment claimed a violation under New York’s election law 17-152 that the falsification of business records were committed to further another crime as an unlawful means to influence the election. However, in a maddeningly circular theory, that other crime could be the falsification of business records. It could also be violations of federal election and taxation laws, which Trump was never charged with, let alone convicted of.
The Evidence
Judge Merchan allowed a torrent of immaterial and prejudicial evidence to be introduced into the trial by the prosecution. That included testimony from porn actress Stormy Daniels that went into details about having sex with Trump. She included a clear suggestion that Trump raped her. After this utterly disgraceful testimony, Merchan expressed regret but actually blamed the defense counsel, despite their prior objections to the testimony. He had previously chastised counsel for making continued objections, but now he criticized them for not continuing to make objections.
Merchan was equally conflicted in his other orders. For example, he allowed the prosecutors to introduce the plea agreement of Michael Cohen to federal election violations as well as the non-prosecution agreement of David Pecker on such violations. However, it was allowed only for the purposes of credibility and context. He issued an instruction that the jury could not consider the plea or the agreement to establish or impute the guilt of Trump.
The prosecutors then proceeded to expressly state that it was “a fact” that federal election violations occurred in this case and that Trump ordered those violations. They also solicited such statements from witnesses like Cohen. Merchan overruled the objections that the prosecutors were eviscerating his instruction. Merchan also barred the use of a legal expert, former FEC Chair Brad Smith, who was prepared to testify that such payments cannot be viewed as federal election violations and would not affect the election even if they were considered contributions, since they would not even have had to be reported until after the election.
Merchan is likely to be upheld in denying the expert, since the court retains the authority to state what the law is to the jury. The problem is that Merchan failed to do so. Worse still, he allowed the jury to hear the opposite in the repeated false claim that these payments were campaign contributions.
The Instructions
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. 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.
Merchan allowed the jury to find that the secondary offense was any of the three vaguely defined options. Even on the jury form, they did not have to specify which of the crimes were found. Under Merchan’s instruction, the jury could have split 4-4-4 on what occurred in the case. They could have seen a conspiracy to conceal a federal election violation, falsification of business records or taxation violations. We will never know. Worse yet, Trump will never know.
The Supreme Court has repeatedly emphasized that the requirement of unanimity in criminal convictions is sacrosanct in our system. While there was unanimity that the business records were falsified to hide or further a second crime, there was no express finding of what that crime may have been. In some ways, Trump may have been fortunate by Merchan’s cavalier approach. Given that the jury convicted Trump across the board, they might have found all of three secondary crimes. The verdict form never asked for such specificity.
These are just a few of the appellate issues. There are other challenges, including but not limited to due process violations on the lack of specificity in the indictment, vagueness of the underlying state law and the lack of evidentiary foundation for key defenses like “the legitimate press function.” They are the reason why many of us view this case is likely to be reversed in either the state or federal systems. None of that is likely to dampen the thrill in this kill in Manhattan.
But if Biden wins the election before this conviction is overturned, history’s judgment will be deafening.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
The following linked post fills in the details of how this persecution came to be and it is an eye opener about how blatant the lawyers were in fulfilling the Laventry Beria method of finding the crime. Mr Turley you MUST forever lose your faith in the integrity of lawyers to follow the law and respect the system! Perhaps many lawyers will maintin their integrity but obviuosly our system has become so corrupted that many, even in high office, are completely dissolute in their attitude towards the law and seek only power while even gleefully sacrificeing justice. There is functionally no difference between the old Soviet or Maoist system and that of the USA where these corrupt lawyers rule. All that has happened with the Trump trial is that the mask has been ripped off. Can anyone doubt that the same system prevails when the victim is poor or unpopular. Derek Chauvin is a good example of justice being warped due to the baying mob.
I have not heard anyone come up with a way to come back from this disaster but we must figure one out or we risk our beloved land to dissolution and anarchy.
https://chrisbray.substack.com/p/mark-pomerantz-revealed-the-madness
Steven Walser said: “you MUST forever lose your faith in the integrity of lawyers to follow the law and respect the system”
Considering that, as of 2020, there were 175 lawyers in the US House and Senate, that would seem to be a foregone conclusion.
although that matters is that the Democrats can refer to Trump as a “convicted felon”
and they are beating that drum to death
that should “all that matters” not “although”
Peter,
The question I have is will it back fire on them.
Based off recent polling, fundraising, it seems to have already.
Because referring to him as a rapist was so effective
Marchan did not require jury form to include vote on federal law violated because at least 3-4 SCOTUS decisions required unanimity. Without the jury tally you can’t prove it wasn’t unanimous. Therefore no hung jury.
I think the instruction that unanimity on the specific “unlawful means” was not required should be enough to reverse. There is no way of knowing from the verdict sheet whether the jury reached unanimity on any one of the three alleged unlawful means, so this cannot be dismissed as merely harmless error.
Another basis for reversal could be that the instruction included federal law campaign finance violations as one of the possible unlawful means. States and localities have no authority to enforce these violations.
Not to mention that they never specifies WHICH Federal Election Law was violated. So the smorgasbord was even bigger.
I’d like to see an interview where a juror names the exact Election law that was violated and how so.
When and who will bring this judge and prosecutors before justice?
When will red state DA’s return the compliment to the Dem’s with a novel law brought back to life? If the actions of these political hit men are not answered it will never stop right through President Trumps second term.
It will be interesting to see how Trump’s Attorneys figure out how to wedge an Appeal into suspending the pending Sentencing by Justice Juan Merchan.
Although if Trump is Convicted-or-Not, before, during, or after the GOP Nomination Festivities, the grounded opinion of the GOP Voters will remain solid.
The 2024 Republican Convention is Mon, Jul 15, 2024 – Thu, Jul 18, 2024. The Mainstream Media, will put a push on Trump’s ‘Conviction’ to douse the hoopla of the Convention, but to Voters that’s Par for the Course.
The DNC Convention is going to be ‘All Talk and No Show’, as crusty Joe is pumped up on drugs and airbrushed to get through a 30 minute appearance. Then it’s back to the Basement for Him. The chances of Biden actually being nominated are still a valid question. Given; Hunter, James, and Joe’s Grift schemes, Hunter’s pending Pardon or Commuting of Sentence by Daddy, and the fact that the Old Man is Checking Out, will push the issue for another Nominee.
The DNC’s crafty plays may come to a head, as the switcheroo is performed and a small percentage of Voters decide that they have had enough for the Parties dishonesty.
And then We will all see the final plays made at the Ballot Boxes come November 5th, as the Electoral College is manipulated for the Oval Office kill.
Judge Merchan knows the conviction will one day be reversed on appeal. He does not care. All that matters is preventing Trump from winning. Timing is everything. I doubt the Manhattan Appeals Division will consider the case before the election – they are elected by the same voters who elected Merchan. On July 11, Merchan will give Trump the maximum possible sentence, to begin immediately. He won’t be able to campaign or even communicate with his voters, as he will be breaking rocks all day in a supermax in upstate NY. Unless there is a way for Trump to get this into a favorable federal court before then, he is likely to lose the election.
– Man perhaps has consensual relationship with a porn star.
– Porn star then tries to extort money from man.
– The man, who is now a victim of extortion, agrees to pay porn star for her silence.
– Porn star takes the money and agrees to sign a NDA.
– Overzealous political prosecutor hates this man and accuses the victim of paying the extortionist.
– Same overzealous political prosecutor treats extortionist as the new victim.
– Politically motivated Judge, whose daughter benefits financially from hatred of this man, gags the victim while presiding in a Kangaroo Court that would be seen as laughable even in a Banana Republic.
This leaves every normal thinking person baffled as to how our world has become Bizarro.
Trump only has 50 other trials to go…. The Rule of Law is DEAD in America….and Kangaroo Fascist Democrat Judges, DAs, AGs, DOJs, IRSs, FBIs….ARE NEVER punished
I want 1000’s of criminal democrats from across government jailed….I don’t even care if there is a trial. If they don’t believe in the RULE OF LAW…why bother!
There is another basis: the scope of cross examination that would have been allowed by Merchan deterred Trump from testifying. This is why the NY Court of Appeals reversed the Weinstein decision.
Daniel, GREAT POINT!
The likely scope of cross examination also prevented Trump from bringing Weissenberg in to testify.
You’ve been so wrong about every facet of this case, Turley. Why trust your (paid for) opinion now?
Well informed normal people understand Turley is right. That the results are different only proves how unfair and biased the Democrat judge, Democrat DA, and the jury was. The result is EXACTLY what I and other decent people expected precisely because we understand how truly evil and corrupt your party is.
Thanks for singing a verse of WE ARE THE CHOSEN PEOPLE!!
Back here on earth 1 you’re as wrong as Turley is.
Turley correctly predicted the results as well.
Dude is a booger eating troll
Wrong every time you sick f$%k. Then again, Turley knew it and he’s just marketing trash to you morons who snap it to reruns of the apprentce.
Turley has stuck to the law. He has not been wrong
Turley has been regularly wrong on this case. Almost to the degree he couldn’t be more wrong.
Turley has been regularly wrong
Yet you could not come up with a single example.
You’ve been here awhile…, just refer back to what Turley has written about this case. Whether it’s his thoughts on the value of Cohen’s testimony, the prospects of a hung jury, or a directed verdict, it turns out Turley was just finger popping his ass.
Hell, Turley has been talking trash against this from back when his friend Barr was actively at work squashing it.
value of Cohen’s testimony, the prospects of a hung jury, or a directed verdict,
Just as I thought. Opinion is not fact.
This case will be appealed, until appeals are exhausted, we can’t judge the opinion. Citing conclusions about future outcomes is just informed conclusions, dependent on known facts.
Turley’s opinion are based on long settled law.
Challenge Turleys interpretation of the law supported by precedent. Find that proccess is flawed, then there is something to discuss, besides your warped TDS rantings
So Turley’s paid for opinions have been wrong is what you’re saying. As far as established law? It’s what convicted trump. You’re just in a shame and rage spiral over it such that you’re sounding moronic on the subject.
Booger eating drunktard says what?
Never seen that finger popping move you speak of. Is that a talent where you come from, pedophile?
Or do you often confuse mouth with ass, as yours are so often in close proximity to one another??
You know all about it ass raptor because that’s what you do all day.
Are you an attorney admitted to practice in New York State?
No. That’s why I take my cues from the DA and the judge. They both come from different perspectives but know the case forward and back, infinitely better than you or I.
forget appeal… How about jailing the fascist criminal democrats!!!
The Russian Hoax was the BIGGEST crime in US history…and NO ONE WENT TO JAIL!
The Fascists are currently winning…we are Europe 1930’s
There are more than 3,000 county prosecutors in the U.S. Any one, or all, of them could find a way to file charges against a national political candidate, thereby interfering with a national election. I believe that Congress should enact a law that charges against a Presidential candidate cannot be brought below the State level. While it would still be possible for an extreme partisan State Attorney General to bring sketchy charges, it’s not as likely. Moreover, there needs to be a provision in the law for an emergency appeal to the U.S. Supreme Court for local convictions concerning a national presidential candidate. To allow this case to wind its way through the state courts until after the presidential election means that election interference will be accomplished, effectively allowing one local District Attorney to effect the political landscape of the entire nation.
Professor Turley seems to be willfully ignoring the fact that absolutely none of this matters. The democrats don’t care if their case is overturned. What they need is Trump in an orange jump suit for the media and sitting in jail at the time of the RNC which is 4 days after sentencing, and both of those things will take place. They don’t need it to look fair or convincing or non kangaroo-esque. They need to scare voters away from voting for Trump and they will succeed.
After inauguration day the prison gates can swing wide open as far as the left is concerned. They will have accomplished their purpose with the complicity of the entire legal system.
Bragg promises to indict everyone that falsely used a corporate credit card to pay for a personal expense.
Well, if there is a God, and I believe there is, the leftist should be happy, because they all will be the largest population in Hell. And forever be separated from the “far right” who should largely reside in Heaven! Congrats leftards!
And if all else fails, one (1) month before the election the media will report that President Trump maintains a nursery of six-months-old babies in Mar-a-Lago from which he chooses a couple per night to feast upon their flesh and blood.
“A LIE DOESN’T
BECOME TRUTH, WRONG DOESN’T BECOME RIGHT &
EVIL DOESN’T BECOME GOOD, JUST BECAUSE IT’S POPULAR.” Unknown
“One of the saddest lessons of history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle.” Carl Sagan
Carl Sagan only paraphrased Mark Twain, poorly: “It’s easier to fool someone than it is to convince them they’ve been fooled.”
The entire case was as misshapen from start to finish as the trees in the crooked tree forest in NW Poland. Let’s just consider the Indictment. It contends that the Trump Trust checking account records were “false” b/c the notations on the checks failed to disclose that part of the $450k payments to Cohen were reimbursement for payments to a Ms. Stormy. There was no legal duty to make such a disclosure. Even if there were such a duty under federal campaign laws, the duty would have existed after the election.
Further, the designation “legal expenses” was accurate. Paying off a blackmailer, who threatens to “damage the brand”, and is a legal expense.
Edwardmahl,
Well said.
But those facts are irrelevant if they get in the way of “Get Trump!”
Jeffrey Epstein also mysteriously died in prison.
Well stated!
Alexei Navalny had the temerity to challenge Vladimir Putin: He died in prison. We have now joined Russia as a country where the ruling elites use the legal system to eliminate the opposition.
Remind me, who is the real threat to democracy?