Experts: Trump may "throw in everything" on appeal

Jurors in the Manhattan criminal trial came to a swift verdict Thursday to find Trump guilty of 34 charges of falsifying business records — and legal experts tell Salon they expect Trump to file a vigorous appeal following sentencing set for July 11.

Retired federal trial judge Gregory Mize, a jury trial expert teaching at Georgetown University Law Center said even as its long faced attacks, the nation's jury system represents "the best lie detector system ever invented."

"They're testing each other's memory, and they're challenging each other,” Mize told Salon. “And they're trying to persuade each other. Why their view might be the best and in that process, people change their mind. And you I believe it's just a beautiful process, where beliefs and assessments and credibility are challenged. You need to persuade or be persuaded about credibility. I can't think of any better way of getting to the truth.”

Manhattan prosecutors alleged that Trump disguised $130,000 in hush money as a legal expense as part of a scheme to keep information about alleged extramarital sex from voters and unlawfully influence the 2016 presidential election.

In April 2023, Manhattan District Attorney Alvin Bragg announced that a grand jury indicted Trump on 34 felony counts of falsifying business records. Trump denied the charges, as well as the claimed sexual encounters. 

Jurors were tasked with deciding unanimously whether Trump is guilty or not guilty on each of the 34 counts. 

Bennett Gershman, a Pace University law professor and former New York prosecutor called the verdict "a total vindication of the decision by District Attorney Bragg to bring the criminal charges, a masterful presentation of the evidence by the prosecution, and a brilliant summation. The jury should be saluted for their diligence and courage."

Ty Cobb, a former member of the White House legal team who reported to Trump, told Salon: "I think the speed of the verdict and the fact it was unanimous as to all counts suggests that they didn't really have much difficulty in terms of going with their gut." 

"Whether it impacts him politically, I'm not optimistic that it will have much impact," Cobb said. "But you would think being a convicted felon would not enhance your presidential resume."

Here’s a run-down of what to expect now that the case is out of the juror's hands.

WHAT HAPPENS NOW THAT TRUMP HAS BEEN CONVICTED?

Judge Juan Merchan has set sentencing for July 11 — the same week as the Republican National Convention in Wisconsin, where Trump has planned to accept his party's nomination for president. 

Whether Trump's team will push to delay sentencing is unclear.

Fordham School of Law professor Cheryl Bader said typically sentencing may be scheduled "a month, two months" out, or longer, after a verdict.

“That's something that the judge will work out with prosecutors and the defense,” Bader said.

Each of the 34 count carries up to four years in prison — but legal experts say Trump would likely serve concurrently if convicted, and would likely face less than a four-year sentence given his lack of a criminal record. 

Merchan himself said this week: "A prison sentence is not required for the charges in this case in the event of a guilty verdict."

Bader said she expects prosecutors and the defense will submit filings ahead of sentencing.

“They'll each submit their requests, submissions, pre-sentence documentation or advocacy pieces,” Bader said. 

Bader said the probation department would also provide the judge with background information on Trump. 

“Trump is a very known character, but that's the process,” Bader said.

Gershman said the public should expect Trump to fight the verdict in the court of public opinion.

"Trump and his handers are getting the disinformation machine into high gear to spread false and utterly ridiculous accusations about the judge and his instructions to the jury," Gershman said.

ON WHAT GROUNDS COULD TRUMP APPEAL?

Trump is expected to appeal any conviction.

“They're gonna throw in everything,” Bader said. “If you're going to appeal you're going to raise every plausible issue.”

Bader said that after sentencing, Trump’s defense team could file a notice of appeal and submit briefs to the appellate division. 

“There's an automatic right of appeal,” Bader said.

Trump could appeal based around discovery issues – including what was turned over to the defense pre-trial.

Trump’s lawyers, as expected, filed unsuccessful motions throughout proceedings asking the judge to dismiss the case — including arguing that Cohen was not credible. 

Trump lawyer Todd Blanche used most of his closing arguments to call Cohen — who served time in federal prison on perjury and tax fraud charges — a liar. 

“Anything that was denied I'm sure they'll appeal,” Bader said.

According to Politico, Merchan asked Trump’s lawyers if they would argue that Trump was relying on “advice of counsel” as a defense. The judge ruled that Trump’s team couldn’t use their suggestion of relying on a “presence of counsel” defense.

On May 21, Merchan admonished Trump’s lawyers for asking him to instruct jurors to weigh the “involvement of counsel” when considering Trump’s intent in a scheme to have the National Enquirer pay hush money to model Karen McDougal, who claimed she had a months-long affair with Trump.

“My answer hasn’t changed, and honestly I find it a little disingenuous for you to make this argument again,” Merchan told Trump lawyer Emil Bove, according to Politico.

Bader said Trump may raise that issue again on appeal.

Bader added that Trump could also appeal on the jury charge itself – from any information that was omitted to the language of the jury instructions.

“Jury instructions are fertile ground for appeal,” Bader said. “If a judge is explaining the law to the jury... that's going to possibly trigger an appeal.”

She said Merchan likely relied on New York’s model jury instructions and precedent. 

“Here, the judge is also instructing them on campaign finance, which you don't have in the typical criminal case,” Bader said.

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The defense decided not to call their campaign finance expert as a witness after Merchan reaffirmed a pretrial ruling that would prevent the expert from interpreting election law.  

Bader said Trump could appeal based on that decision. 

“The trial judge has a certain amount of discretion in allowing in evidence, and so evidentiary rulings are often not quite as fertile grounds for winning an appeal as strict issues of law,” Bader said. “Because the rulings have to have actually compromised the fairness of the trial. So an appellate judge might think: ‘Well, I would have ruled a little differently on this, but that doesn't undermine the whole trial. Whereas if the jury is improperly instructed as to what the law is, that could undermine the trial itself.”

Trump's social media posts have also listed other qualms: including Merchan's gag order limiting what Trump can say about witnesses.

Trump and surrogates stationed outside the courthouse have argued the trial is a politically-motivated witch-hunt and questioned why it took him so long to be charged. 

Bader said an appeals court wouldn’t interfere with issues like credibility or what witnesses believe. “Those are questions for the jury,” she said.

“But if it's about how the law is stated and if it was an error, that could lead to a new trial,” Bader said. 

WHAT EXACTLY WAS TRUMP CONVICTED FOR?

Merchan's instructions in part read: "Under our law, a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: makes or causes a false entry in the business records of an enterprise."

Prosecutors alleged Trump made or caused the falsification of business records, including invoices and checks to Cohen — some of which have Trump's signature on them. 

Prosecutors also alleged that 2017 Trump Organization general ledger entries falsely described 2017 payments to Cohen as a “legal expense.” 

Trump’s defense team argued that the former president knew nothing about Cohen’s payments or reimbursement at the time and that the business records accurately showed payments for legal services to Cohen, who says he did less than ten hours of legal work for Trump in 2017.

Prosecutors pointed to pieces of evidence corroborating Cohen’s testimony – including handwritten notes appearing to show Trump employees detailing an outline of a plan to reimburse Cohen to the tune of $420,000 in monthly installments in 2017 for the $130,00 payment to Daniels on top of other costs, including taxes and a bonus.

"Based on everything that Trump has said and done, do you think there is any chance, any chance that Trump would have paid $42,000 an hour for legal work by Mr. Cohen?" prosecutor Joshua Steinglass said in closing statements. "That would be a pretty sweet hourly rate."

Jurors weighed whether Trump caused the falsification of records with an intent to defraud, defined as "a general intent to defraud any person or entity" that can include, but isn't limited to, depriving another of property or money.

“And the judge gave them a very broad instruction saying that they could consider almost everything on intent, that they can take in all the circumstances and their common sense about why someone falsified business records,” said Jeffrey Abramson, emeritus Professor of Law and Government at the University of Texas at Austin. “I thought that was a telling moment that was probably good for the prosecution.”

Cobb said that the jury instructions were favorable to the prosecution — "but not unfairly so."

The instructions said that the intent to defraud has to include committing, aiding or concealing "another crime."

“Another crime could be any crime," Adam Shlahet, director of the Brendan Moore Trial Advocacy Center at Fordham Law, said. "They don't need to have succeeded in that crime. And they don't need to have failed in that crime."

Prosecutors alleged that Trump intended to commit, aid or conceal a violation of state election law section 17-152. 

That statute "provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election."

HOW DID FEDERAL CAMPAIGN LAW FACTOR INTO A STATE CASE?

Merchan said jurors could consider three unlawful means under New York's election law conspiracy statute: a violation of federal election law, falsification of other business records or violation of tax laws. 

Merchan said that under state law, jurors didn't have to unanimously agree on what constitutes "unlawful means" under the election conspiracy statute.

Abramson said that “cuts in favor of the prosecution", making it "potentially easier for the jury to reach unanimity.”

Outside the courtroom Thursday, Trump quoted MSNBC analyst Catherine Christian, who on Wednesday said: "This has never been prosecuted before. Falsified business records prosecuted all the time... But it's usually grand larceny insurance or a tax fraud. It's never been done this way."

Christian also said: "If there’s a conviction, it will be appealed just on the fact that it’s never been prosecuted before. So it’s a very nuanced argument for the prosecution to make."

Shlahet told Salon: "Whether or not the New York law is a fair one, or is drafted in a fair way, is something that they're going to have to take up on appeal."

Trump, for his part, has repeatedly questioned why a county district attorney is prosecuting him on allegations concerning violations of federal election law.

Cobb said he expects the indictment will "be closely scrutinized on appeal."

He said the defense could raise "strong" constitutional concerns. 

"They may not win on that but it will be seriously considered," Cobb said. "Whether it holds up on appeal is a little more of a toss-up than it typically is on conviction. But it is not by any means an uncertainty."

Prosecutors alleged that Trump was trying to bury other negative stories by having Cohen pay hush money to Daniels and having the National Enquirer pay hush money to McDougal and a former Trump Tower doorman who falsely claimed Trump had a child out of wedlock.

The jury instructions delved into the Federal Election Campaign Act, and stated that it is "unlawful for an individual to willfully make a contribution to any candidate with respect to any election for federal office, including the office of President of the United States, which exceeds a certain limit."

"It is also unlawful under the Federal Election Campaign Act for any corporation to willfully make a contribution of any amount to a candidate or candidate’s campaign in connection with any federal election, or for any person to cause such a corporate contribution," read the instructions.

And the instructions stated: "If the payment would have been made even in the absence of the candidacy, the payment should not be treated as a contribution."

Cohen testified that in 2018, at a time of federal scrutiny over hush-money payments made on Trump's behalf, then-President Trump assured him that then-Attorney General Jeff Sessions was "in his pocket."

Cohen in 2018 pleaded guilty in Manhattan federal court to eight counts that included one count of causing an unlawful campaign contribution, and another count of an excessive campaign contribution, in connection with the payment to Daniels. According to The Associated Press, federal prosecutors agreed not to prosecute the National Enquirer's publisher in exchange for its cooperation.

In 2021, the FEC failed to support their general counsel’s recommendation to investigate payments to Daniels amid partisan deadlock.

Also in 2021, the FEC fined the National Enquirer $187,500 for violating campaign finance law by paying hush money to McDougal.

Pecker, the former publisher of the National Enquirer, testified that he was aware that coordinating with a candidate or campaign to make expenditures to influence an election is unlawful. 

"We didn't want the story to embarrass Mr. Trump or embarrass or hurt the campaign," Pecker said. 

Jurors on Thursday asked to again hear parts of testimonies from former Trump fixer and personal attorney Michael Cohen and former National Publisher David Pecker.

"Most experienced trial lawyers would recognize that the jurors were going to look at the chronology that the government set forth, and the government accurately portrayed Pecker's testimony during the closing," Cobb told Salon. "Once the jury corroborated that, they were sort of on the path to conviction."

In his closing arguments, Blanche argued that agreement is "evidence of nothing as it relates to President Trump's guilt."

Jury instructions said that jurors could only use that agreement to assess Pecker's credibility and to "help provide context for some of the surrounding events."

Blanche said there is "no evidence, none, no evidence of a willful violation of" the Federal Election Campaign Act.

At least one legal expert, Boston University law professor Jed Shugerman, questioned the decision to allow jurors to consider whether Trump used 2017 tax records to promote his 2016 candidacy.

"Maybe fatal on appeal," Shugerman said on X. "The judge and DA think it's plausible that tax documents recorded in 2017 were a 'means' of promoting a candidate in the 2016 election. Maybe call them a cover-up. But that's not the question Merchan sent to the jury."

Shugerman retweeted a post citing a 2011 U.S. Court of Appeals Sixth Circuit case that says, in part, that "risk of jury confusion" could warrant requiring jurors to unanimously agree on the means of a crime. 

Meanwhile, Steinglass used his closing arguments to remind jurors that the prosecution's case is about a "conspiracy and a coverup" allegedly devised in 2015 and extending to 2017.

Steinglass stressed that prosecutors have shown "overt election fraud."

"It's hard to say that the American people don't have the right to decide for themselves whether they care or not, that a handful of people sitting in a room can decide which information gets into those voters' hands," he said.

Steinglass pointed jurors to allegedly falsified tax documents that he said furthered the election conspiracy. 

"You don't have to pay taxes on a reimbursement, so you don't have to report them as income," Steinglass said. "So the result of reporting them as income is the more taxes are getting paid then are owed. But as the judge will tell you, it's a crime to prepare false tax documents, regardless, even when doing so does not result in underpayment of taxes. And preparing these false tax documents is yet another unlawful means that the defendants and his cohorts were willing to engage in to conceal their election conspiracy."

Steinglass stressed that jurors could also look to other business records: "They still try to argue that the payments to Cohen in 2017 were for legal services rendered, because to say anything else is to admit that the business records were false. And they can't do that."

Steinglass said that internal business records are important — whether for review by tax professors, or government and election regulators. 

"The Defendant used his own business records as the vehicle to disguise the reimbursement because he didn't want anyone finding out about the conspiracy to corrupt the election," Steinglass said. 

"Everything Mr. Trump and his cohorts did in this case was cloaked in lies," he said. "Lies in the DJT and Trust business records themselves. Lies in the phone invoice from IAS about a flat fee. Lies in the bank account opening documents about the true nature of these accounts. Lies in the bank paperwork for the wire transfers. Lies in the 1099s. Pseudonyms, shell companies, encrypted apps, a paper lease HELOC to fund the deal. The defendant refused to use email to avoid leaving a paper trail. Misleading and an outright false denial about Pecker, Davidson, Daniels, Cohen and his lawyer, all in a last ditch effort to prevent the truth from coming out."