Donald Trump’s rap sheet is a work in progress these days.
Under the leadership of the former president CURRENT court schedule, he will greet Election Day as a convicted felon.
But legal scholars predict Trump will use his new presidential immunity powers to execute an unprecedented legal maneuver, one that will delay his hush money sentencing, now set for Sept. 18, until voters to cast their vote.
Two days before his sentencing, Trump, they predict, will seek something not previously allowed in New York appeals courts, or in most states for that matter: a cross appeal.
Interlocutory is just a fancy, legal term for the type of appeal that is filed before a case ends at the trial court level.
Former Manhattan prosecutors and judges have told Business Insider that New York’s criminal procedure law simply does not allow for the kind of preliminary and cross-appeal that Trump is already signaling he plans to seek, one that challenges the admissibility of the evidence used against him.
Defendants can appeal their convictions only after, not before, sentencing, according to experts in New York trial and appellate law.
“This is the law in bold,” meaning well-settled and undisputed, former Manhattan financial crimes prosecutor John Moscow told BI.
But Trump’s lawyers have something up their sleeve, they say, the trump card is black-letter, state-level law: a shiny new, big legal pain called presidential immunity.
Donald Trump and attorney Todd Blanche in the hallway outside his Manhattan hush money trial. Justin Lane/Getty Images
A battle for immunity
The US Supreme Court last month found that a president’s official acts cannot be used against him in a criminal prosecution. Trump now says that’s exactly what happened, improperly, when he was convicted of 34 felony counts of falsifying business records to conceal a 2016 pre-election cash payment to porn actress Stormy Daniels .
Trump has asked his trial judge, state Supreme Court Justice Juan Merchan, to throw out the entire case on that basis. He is arguing that some of the evidence used against him included official records from his first and second years in office, including an incriminating conversation he had about paying hush money with a former White House adviser, Hope Hicks.
Manhattan prosecutors have argued that any evidence of the official act was irrelevant — “a sliver of a mountain of testimony and documentary evidence” as they put it in court documents — and so the conviction should stand.
Merchan has promised a written decision on September 16, just two days before the scheduled sentencing.
A monkey legal grief to be reckoned with
Legal scholars believe Merchan will side with prosecutors. And they expect Trump will then immediately begin moving his immunity monkey through layers of state appeals courts — and federal appeals courts, too, if necessary.
Trump won’t stop swinging, they predict, until he finds a judge who will “stay,” or delay, a procedure in which he faces probation, community service, fines and anywhere from zero to four years. prison.
The sentence is likely to remain quiet, experts in constitutional and appellate law said, as this interlocutory appeal drags on in an attempt to overturn Merchan and kill the case in its entirety on the basis of official-evidence.
“He has some not-so-crazy arguments,” said Michel Paradis, a lawyer who teaches national security and constitutional law at Columbia Law School.
Trump attorneys Todd Blanche and Emil Bove first hinted that was their strategy in an Aug. 14 letter to Merchan, asking for the sentencing to be delayed until after the election.
Even Trump’s Manhattan prosecutors are admitting that this is a legal monkey wrench to be reckoned with. On August 16, they declined to take a stand on whether the sentence would be postponed. Instead, they deferred to Merchan for scheduling, “given the defense’s newly stated position” that an interlocutory appeal is planned.
Until Friday, the schedule remained unchanged. Trump remains in court on September 18.
Part of a letter New York Supreme Court Justice Juan Merchan sent to the parties in the money case earlier this month. The New York Court System
“Bragg’s willingness to put the question to the judge shows that even the DA recognizes the strength of Trump’s argument,” Paradis said, referring to Manhattan District Attorney Alvin Bragg.
A spokesman for the DA’s office declined to comment. A lawyer for Trump did not immediately respond to a request for comment.
SCOTUS can help
Donald Trump at the defense table at his trial in Manhattan with attorneys Todd Blanche, left, and Emil Bove. Pool/Getty Images
Moscow, the former Manhattan financial crimes prosecutor who now works at Lewis Baach Kaufmann Middlemiss PLLC, believes Trump will quickly be laughed out of court as he begins appealing at the state level.
The claim that his state appeal bears any resemblance to his SCOTUS case is “arrogant and misguided,” he said.
But Trump won’t take no for an answer if his first-tier state appeal fails, experts said.
“If the New York courts deny him the right to appeal, he can challenge the decision in federal court,” Paradis said. If the federal district court in Manhattan says no, “he can appeal it to the federal second circuit court of appeals.”
If he is denied a stay at any point, Trump could also quickly seek one from SCOTUS, the professor added, adding that the Supreme Court has been “very sympathetic” to him.
“But if you look at similar precedents in the national security, diplomatic, even attorney-client context, Trump has a real case to make” in favor of a mutual appeal, Paradis said.
Trump’s hush money case, meanwhile, would remain in limbo — unconvicted and unsettled — as whichever appellate safe haven he landed in weighs whether the case should be tossed entirely because Manhattan prosecutors wrongly relied on the “official act” type of evidence now. banned for use against a former president.
Frank Bowman, an emeritus professor of law at the University of Missouri, predicts that New York’s appellate judges “will say that Merchan has made his decision — that it’s essentially a limited, probative decision — and the best time for to address it is on appeal after conviction”.
“It will take weeks at best and months longer,” he predicted.
Still, “We’re in a strange world here,” he joked. “Anything can happen.”