Trump wants the Supreme Court to toss out his conviction. Will they?
VOX
Trump wants the Supreme Court to toss out his conviction.
Will they?
It’s hard to see how they’d do it legally, but this Court has a history of reading the law creatively.
Jun 5, 2024 at 10:55 AM EDT
https://www.vox.com/scotus/353561/supreme-court-donald-trump-nullfy-conviction
Trump’s conviction will first appeal to New York’s intermediate appeals court (which, somewhat confusingly, is called the “appellate division” of the state’s “Supreme Court”).
After the appellate division weighs in, the losing party can then appeal that decision to the highest court in New York, which is known as the “Court of Appeals.”
Except in very rare cases, any appeal of any trial court decision will take months.
Trump’s lawyers will need time to review the record in the trial and decide which issues they want to appeal, and they will need more time to brief the case. Then, the prosecutors will also need sufficient time to review Trump’s briefs and prepare their own responsive brief, which Trump’s lawyers will then be given some time to respond to.
Once the briefs are ready, they will be distributed to a panel of judges, who ordinarily spend months reviewing the case, conducting oral arguments, and writing an opinion. This process can take even longer if a judge dissents.
This is just a brief summary of the process that will take place in the appellate division.
If Trump plans to bring this case to the US Supreme Court, he will have to repeat this lengthy process in both the New York Court of Appeals and in the Supreme Court itself, and both of those courts have their own time-consuming process to decide which cases they will hear in the first place.
The Supreme Court does have a process, known as “certiorari before judgment,” which can be used to bypass an appellate court and bring a case directly to the justices, but cert before judgment is supposed to be granted only in the most exceptional cases, and it’s only supposed to be available to parties challenging a federal (not a state) court decision.
The Court’s rules provide that it “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” (Notably, when the shoe was on the other foot, the Supreme Court denied special counsel Jack Smith’s request for cert before judgment in the Trump immunity case.)
It’s hard to see what earth-shattering legal issue could be raised by a state-level prosecution over falsified business records that could justify such a deviation from normal procedures — unless, of course, the justices believe that there is a moral imperative to rescue the Republican candidate from an embarrassing news story.
Meanwhile, some of Trump’s allies have suggested that Trump could invoke even more obscure procedures, such as asking the Court to use its “original jurisdiction” to free him without going through the ordinary appeals process at all. But there are any number of problems with this approach — among other things, as law professor Lee Kovarsky points out on Twitter, the Supreme Court hasn’t granted this kind of relief to someone convicted of a crime since 1925.
In any event, even if the justices are inclined to move fast enough to toss out Trump’s conviction before the election, Trump’s lawyers would need to formally ask them to do so. So the thing to watch right now is whether Trump’s legal team takes the audacious step of filing such a request in the Supreme Court.
What would be the legal basis of a Supreme Court decision tossing out Trump’s conviction?
As a general rule, each state’s highest court has the final word on questions of state law, and the Supreme Court is only supposed to get involved in a case if there is some allegation that the lower courts either violated the Constitution or a federal law.
This matters because, while there are some plausible legal arguments Trump could raise on appeal, these arguments largely turn on the proper way to understand New York’s laws.
Trump’s strongest argument, for example, turns on the question of whether he was properly convicted of violating the felony version of New York’s business records law, as opposed to a weaker misdemeanor version. But, while there is genuine uncertainty about how to read this law, the question of how to read a New York criminal statute is a question of state law and thus should be resolved exclusively by New York’s state courts.
In his Truth Social post, Trump does hint, in his own way, at two legal arguments that could be raised under federal law. He claims that the prosecutor was improperly biased (“Radical Left Soros backed D.A., who ran on a platform of ‘I will get Trump’”) and that the judge is also too biased to hear his case (“appointed by Democrats, who is HIGHLY CONFLICTED”).
Yet, while it is theoretically possible to challenge a conviction on the grounds that the judge or the prosecutor was unconstitutional biased, as a practical matter these sorts of cases are almost impossible to win.
Before we get into that, it’s important to note that Trump’s allegations against prosecutor Alvin Bragg and Judge Juan Merchan are, to put it mildly, exaggerated. Bragg did not run on an “I will get Trump” platform. He did, while he was campaigning for his current job, highlight his previous experience bringing civil lawsuits against Donald Trump, but that’s because Bragg’s predecessor had already opened a criminal investigation into Trump. So it appears that Bragg was trying to convince voters that he had the experience necessary to take over supervision of this ongoing investigation.
As a candidate, Bragg also emphasized that he will “follow the facts” in that investigation and that “every case still has to be judged by the facts and I don’t know all the facts.”
Similarly, it’s unclear what could be the basis of a recusal motion against Justice Merchan. The fact that Merchan was “appointed by Democrats” is not a valid reason to remove him from the case, any more than Judge Aileen Cannon, the Trump appointee overseeing a different Trump prosecution, can be removed from that case solely because she was appointed by Trump.
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