Trump announces he will appeal his conviction for hush money. Does he have a chance?


Even before his latest criminal trial in New York began, former President Donald Trump had already called his prosecution unfair, and now he is expected to appeal his conviction, finally giving him a chance to make his case in a higher court. That appeal could raise significant legal arguments, legal experts say, even if the presumptive Republican presidential nominee is no surefire winner.

Trump was found guilty on all 34 counts of falsifying business records to cover up a conspiracy to improperly influence the 2016 presidential election. The business records showed payments to Trump's former lawyer, Michael Cohen, as legal expenses for 2017. In reality, a Manhattan jury concluded, the payments were reimbursement of hush money to Cohen paid to silence porn star Stormy Daniels about an alleged affair with Trump.

“We will appeal this fraud,” Trump vowed in a press conference after the verdict.

Merchan's pretrial decisions about what evidence could be presented could be grounds for an appeal, especially given that during the trial, a New York appeals court decision overturned former Hollywood Oscar-winning actor Harvey Weinstein's 2020 rape conviction, according to Mitchell Epner, a former prosecutor and longtime New York trial lawyer.

“It overturned one of the most serious criminal convictions against one of New York's richest and most powerful people this century,” Epner told USA TODAY.

Here's a preview of the arguments Trump should make in his likely appeal, according to legal experts:

The shadow of Harvey Weinstein

In Weinstein's appeal victory, New York State's highest court found that the judge had wrongly allowed testimony from other women whose stories were not part of the crimes he was accused of, and had undermined Weinstein's right to testify by ruling that he could be cross-examined on these “unproven allegations.”

In the Trump case, Merchan also allowed testimony or evidence that went beyond the crimes he was accused of, such as the transcript of the infamous Access Hollywood video in which Trump describes kissing women without their consent and touching their genitals. Merchan said prosecutors could use the transcript to prove that Trump wanted to pay Stormy Daniels not to publicly discuss their alleged affair after the release of the video had jeopardized his standing with female voters. But Merchan decided that playing the video itself would go too far.

Merchan ruled during the trial that Trump could be questioned about court decisions in civil cases that involved Trump defaming New York writer E. Jean Carroll and fraudulently inflating his assets to obtain loan and insurance relief, but not about Trump sexually abusing Carroll. (Trump had publicly promised before the trial to testify in his defense in the criminal case, but withdrew.)

Epner said the Weinstein decision could give Trump a chance because it “shows that there is a core group of people on the appeals court who think this issue is so important that they would overturn even the most spectacular cases if they thought the court had acted wrongly.”

But Merchan's decisions could well be vindicated, he added. “If I had to bet on who is one side or the other, I would vindicate them,” Epner said. “But I don't think it's a sure thing.”

Non-unanimous jury?

The legal instructions given to the jury in Trump's criminal trial were not straightforward. Jurors were told that a guilty verdict requires that Trump falsified business records. In addition, a guilty verdict must establish that the purpose of the falsification was to cover up a conspiracy to improperly influence the 2016 election through one of three possible criminal avenues: violating federal campaign finance laws, violating tax laws, or violating business record disclosure laws.

Merchan also told jurors that a guilty or acquittal verdict would have to be unanimous, but a guilty verdict would not require all jurors to agree on which of the three counts of unlawful election interference Trump committed.

Trump could challenge this final instruction to the jury on appeal, arguing that the jury should have agreed on what type of unlawful conduct the election conspiracy involved.

Karen Agnifilo, a former prosecutor in the Manhattan district attorney's office, told USA TODAY she doesn't expect Trump to win the appeal with that argument, but she doesn't think it's frivolous, either.

Agnifilo compared the issue to the way juries must judge burglary cases in New York, where a guilty verdict requires the jury to find that the defendant committed trespass with the intent to commit another crime, without having to agree on what the crime was.

Agnifilo gave the example of a man who was caught entering the door before he could do anything outside the door.

“Maybe he had zip ties, condoms, a safecracker, a mask, a bag to carry things away – we don't know what crime he was trying to commit, and a jury doesn't have to be unanimous,” Agnifilo said.

State conviction for a federal crime?

Trump could also challenge whether Merchan was correct in allowing an underlying federal crime to result in a state-level criminal conviction. Merchan said violating federal campaign finance laws or federal tax laws could be the basis for the unlawful election conspiracy.

Shane Stansbury, a lecturer at Duke Law School and former New York federal prosecutor, told the BBC before the trial that it was “unclear whether a prosecutor can prosecute a federal election crime as Mr Bragg appears to intend to do.”

Epner, however, did not expect Trump to win on that argument because New York state law does not impose any restrictions on the crimes prosecutors can cite.

“It doesn't say 'state law.' It doesn't say 'federal law.' It doesn't say 'US law,'” Epner said.

Problems with the judge

Trump's lawyers could also argue that the verdict should be overturned because Merchan had nothing to do with presiding over the trial.

Trump's team had previously argued that Merchan should have recuse himself because Merchan's daughter provided marketing services to Democratic political candidates and because he made a $35 donation in 2020 to ActBlue, a Democratic-affiliated organization, of which $15 was earmarked for Biden's 2020 presidential campaign.

A New York commission that reviews the conduct of judges dismissed a complaint against Merchan regarding the donation but still issued the judge a warning, Reuters first reported.

However, the New York Advisory Committee on Judicial Ethics ruled long before the trial that Merchan's impartiality could not be questioned on those issues. The committee said Trump's criminal case did not involve the daughter's work. The committee called the donation “modest” and said it “rarely” requires disqualification or disclosure based on political donations older than two years.

That finding suggests that Trump is unlikely to seek an overturning of Merchan's conviction because of his role in the case, says University of Texas law professor Lee Kovarsky.

“The donation may be improper, but there is virtually no chance it will play a role in an appeal,” Kovarsky wrote in LawFare, a nonprofit that provides analysis on legal and policy issues related to national security.

Kovarsky said the New York court system generally insists that appellate courts cannot interfere with a judge's recusal decision unless there is actual bias that affected the outcome. “Given the Ethics Committee's finding that there was not even the appearance of bias, any recusal issue is a lost cause,” Kovarsky wrote.

Trump's lawyers did not respond to a request for comment.