| The Rose Report |

Grounds for Appeal

How will the former president's conviction affect his dead-heat reelection?

Donald Trump’s trial for falsifying business records may have ended in his conviction on 34 felony charges, but he has more chances to make his case — both to New York appellate courts, and to the highest court of all, the voters. What’s next in his legal battles? What’s more likely — that he ends up in a prison cell, or in the Oval Office? With his supporters already circling the wagons around him and his enemies celebrating with glee, how will the New York convictions and the other cases pending against him impact what is building up to be one of the most bizarre elections in US history?


Now that Trump has been convicted, what’s the next step in the process, and when can we expect new developments?

Judge Juan Merchan, who presided over the New York “hush-money” trial, set July 11 as the sentencing date — just four days before the Republican national convention in Milwaukee. At least he didn’t make a date during the week of the convention, but until then, Trump will be distracted and under pressure.

We will have more clues as to Trump’s whereabouts in the second week of July after his pre-sentencing hearing, which begins in the second week of June.

Defense attorneys have until Thursday, June 13, to file their sentencing motion explaining why their client deserves only a slap on the wrist and not a stiff prison term. The prosecution has until June 27 to inform the court if it plans to seek a prison term. Sometime before the sentencing, a court probation officer, social worker, or psychologist will interview Trump, and perhaps family members and friends, to help the court develop a recommendation for his sentence. So we should know by the end of June what each side is seeking.

How likely is Trump to get that slap on the wrist? Or will he be the first former president to be thrown in the slammer?

The consensus in the legal community is that Judge Merchan will suffice with probation, a fine, and/or community service.

Trump might argue there is no greater community service than serving as president of the United States, but kibbitzing aside, each of the 34 charges carries a maximum four-year prison term. If the prosecution seeks a prison sentence, it’s hard to see how the judge, who took a no-nonsense attitude toward Trump throughout the trial, including imposing gag orders, would show much mercy.

Even if he sentences Trump to a short term in prison, Judge Merchan could postpone the sentence until all appeals are exhausted. The specter of Trump being incarcerated so close to the convention would make the January 6 riots, or insurrection if you prefer, pale in comparison to the national turmoil that would surely break out. That being the case, the chances of derailing Trump’s appearance at the convention to accept his party’s nomination is close to zero.

But if he must, Trump can campaign from prison, just as Biden campaigned from his basement while COVID-19 raged during the 2020 election.

When can Trump appeal his conviction? Will it drag out past Election Day in November?

Assuming the sentencing comes off as scheduled on July 11, New York law requires a convicted defendant to declare his intention to appeal within 30 days. That would take us to August 10. Following that, he has six months to file a legal brief containing the full appeal with New York’s First Department Appellate Court.

The presiding judge of that appellate court is Judge Dianne Renwick, a graduate of Yeshiva University’s Cardozo School of Law. It was Judge Renwick who slashed the bond in the civil suit against Trump for business fraud that Judge Arthur Engoron leveled in February, from $354 million to an “affordable” $175 million.

Six months from August 10 takes us to mid-February 2025, well past the January 20 presidential inauguration date. Even then, it will most likely take the five-judge appellate court until mid-2025 to pore over the briefs, hear oral arguments, and issue a ruling. Under certain circumstances, even if the appellate court upholds the convictions, Trump could appeal further to the New York State Court of Appeals, which could tack on another year to the process.

What are Trump’s chances of winning the appeal, and who will represent him?

Appeals courts are a different legal animal. While a criminal court reviews evidence to determine the facts and question and cross-examine witnesses, the appeals court relies exclusively on legal briefs submitted by attorneys for both sides and subsequent oral arguments. In New York, the appellate court has the power to review issues of both law and fact in civil and criminal matters, including whether the law was correctly applied, or if the court abused its discretion or used the wrong standard of proof, according to the New York legal firm Kravet & Vogel.

Many legal experts contend the strongest arguments on appeal will deal with ambiguity in the law that enabled the prosecution to elevate the charges against Trump from misdemeanors to felonies, and with the possible faults in the judge’s instructions to the jury.

According to MSN.com: “In New York, it is a misdemeanor to falsify business records with ‘the intent to defraud.’ That’s what Trump did by disguising a $130,000 ‘hush money’ payment as a legal expense. It only becomes a felony if that falsification is done to conceal another crime. The prosecution claimed Trump’s ‘other crime’ was a violation of an obscure New York statute that prohibits conspiring ‘to promote or prevent the election of any person to a public office by unlawful means.’ ”

In layman’s terms, if Trump:

1) falsified records of his payments (a misdemeanor)

2) to keep embarrassing information from harming his chances in the 2016 presidential election, then we have a felony.

However, the law does not spell out what qualifies as “unlawful means.” In Judge Merchan’s instructions to the jury, he gave them a hodgepodge of choices: the unlawful means could have been either a violation of federal election campaign law, falsification of business records, or violation of tax laws. So even though the jurors voted unanimously to convict, each might have convicted him with a different unlawful means in mind.

Trump might have a better chance on appeal, where the issues are legal and technical, than in a jury trial, where the jury might have been swayed by a mountain of physical evidence and sensationalist testimony by depraved individuals. However, appellate court attorneys are also a breed apart. It’s a specialty within the legal profession. The Manhattan district attorney has a top-notch appellate attorney on staff to argue his side.  Trump would be wise to retain a firm that has experience and a winning track record in appeals courts to represent him.

So how about the other legal cases pending against Trump? What are the chances that they will create a domino effect against him?

The next shoe to drop will be when the US Supreme Court rules on whether Trump can use presidential immunity from prosecution as a defense in the federal case charging him with allegedly interfering with the certification of the 2020 election results, which ultimately led to the January 6 Capitol Hill riot. That ruling could come as early as this week, or sometime in late June or early July. The expectation is that the nation’s highest court will rule that Trump enjoys some immunity, but not blanket immunity, and will return the case to a lower court to tweak the charges against him.

However, if the court should rule against him, there is a chance that the case could be heard before the election, although the likelihood of either an adverse ruling or a speedy trial are low.

The other cases against Trump, for allegedly mishandling classified documents and election interference in Georgia, are both on hold for now, pending further appeals (in Georgia) and other legal wrangling (in Florida). Neither case is likely to be gaveled to order any time before the November election.

Legal matters aside, what’s most important is how the public perceives the Trump conviction and what impact it will have on his election prospects. What do the polls show?

The first snap poll taken after the conviction (Morning Consult) showed that 49% of independent voters and 15% of Republicans thought that Trump should bow out of the race. It’s generally agreed that independents will be the decisive factor in the 2024 presidential race.

However, a Reuters/Ipsos poll taken after the conviction showed that 26% of independents said the verdict would make it less likely that they would vote for Trump, and 16% said it would make them more likely that they will vote for him.

That same Reuters/Ipsos poll showed Biden leading Trump nationwide by 2% but their previous poll, in early May, showed Biden with a wider lead of 4%. And the HarrisX/Forbes poll taken two days after the conviction showed Trump with a 2% lead over Biden, and a similar lead when third- and fourth-party candidates are added in.

Choose your favorite pollster. Bear in mind that there are five months until Election Day (and three months until early voting begins), the news cycle is relentless, and much of last week’s events will be long forgotten by the time balloting begins.

Are there any signs we can look for that might portend where Trump’s support is heading?

The last four Republican primaries were scheduled this week in Montana, New Jersey, New Mexico, and South Dakota. Except for New Jersey, which began early voting just a day before the verdict was announced, the other three states began early voting weeks ago, so a goodly percentage of Republicans had already cast their votes long before the verdict was read.

After the verdict, most major Republican lawmakers, including Senate Minority Leader Mitch McConnell of Kentucky and Senator Marco Rubio of Florida, who is on Trump’s short list to be his vice presidential running mate, voiced full-throated support for Trump. Even a Trump nemesis like Senator Mitt Romney of Utah accused the Manhattan DA of committing “political malpractice” in his pursuit of criminal charges against Trump. Romney suggests the case should have been settled out of court.

Ultimately, it’s the votes of upward of 150 million Americans who will cast ballots in this year’s election that are the final arbiters, but following the money trail is most telling. Trump reportedly raised $53 million in the 24 hours after he was found guilty. That’s a pretty healthy crowdfunding campaign.

In the days and weeks leading up to the verdict, many Republican donors who had been sitting on the fence announced they would ante up for Trump. These include Dr. Miriam Adelson, the Israeli-born wife of the late Sheldon Adelson, who plans to contribute some $85 million to the pro-Trump super PAC Preserve America, close to the $90 million the couple donated in 2020.

The rise in anti-Israel sentiment and anti-Semitism in the US is backfiring on the Biden administration and providing added impetus for leading Jewish political donors to bankroll Trump. The Financial Times reported that hedge fund billionaire Bill Ackman, who supported Nikki Haley, is set to endorse Trump. Ackman has battled against DEI policies and anti-Semitism on college campuses, and is ready to throw his financial weight behind Trump, as is Blackstone CEO Steve Schwarzman, who told Axios last week that he would support and donate to Trump after previously calling for “a new generation of leaders.”

Nelson Peltz, a chairman of Madison Square Garden Corporation who, after January 6, expressed regrets for voting for Trump, recently hosted Trump at his Florida mansion.

Overall, business leaders from Wall Street to oil producers are increasingly looking away from Trump’s foibles and legal woes and focusing on his promises to lower taxes, promote pro-Wall Street legislation, and increase domestic oil production, all of which could add more than $1 billion to Trump’s campaign coffers between now and Election Day.

This leads to one final question. Why would people support a candidate who is so legally and morally challenged?

No offense to the third- and minor-party candidates running, but this is a two-man race between President Biden and former president Trump. Most Americans say they are not happy with the choice, but a recent Cook Political Report poll found that swing state voters are more worried about Biden’s “age and ability to complete his term” (53%) than Trump’s “temperament and legal problems” (47%).

Also, while this might be the first time that a former US president has been convicted of felonies, it’s not that unusual worldwide. Axios reported that since January 2000, leaders in some 78 countries have been jailed or prosecuted after leaving office. And if you go back to 1980, leaders or former leaders in almost half the world’s countries have been charged or convicted.

While many of them hail from the Third World or banana republics, where corruption is the coin of the realm, former leaders in France and South Korea have also done jail time for acts committed in office. Israel is no exception to the rule, as Prime Minister Netanyahu’s trial is now entering its fifth year (so much for the right to a speedy and just trial) and former prime minister Ehud Olmert spent 18 months in prison for bribery and breach of trust.

This raises one more final question: If being a head of state or president is so hazardous to one’s freedom, why does anyone want the job?


(Originally featured in Mishpacha, Issue 1014)

Oops! We could not locate your form.