"I don't see any of that": Experts pour cold water on Trump's hope that Supreme Court will save him

Trump could try to turn to SCOTUS but his arguments are "long shots," says UCLA Law Prof. Rick Hasen

By Marina Villeneuve

Staff Reporter

Published June 3, 2024 3:52PM (EDT)

Donald Trump | Supreme Court (Photo illustration by Salon/Getty Images)
Donald Trump | Supreme Court (Photo illustration by Salon/Getty Images)

Former President Donald Trump faces steep odds on his likely years-long battle to appeal last week's criminal conviction, legal experts told Salon.

Trump on Sunday complained about his upcoming sentencing date, which is scheduled days before the Republican National Convention, writing on Truth Social that the "Supreme Court MUST DECIDE." 

"There's an uphill battle, both in the state courts and the U.S. Supreme Court," Manoj Mate, a professor of law at DePaul University College of Law who focuses on constitutional law, told Salon.

The Manhattan jury convicted Trump last week of all 34 felony counts of falsification of business records. 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.

Salon has spoken to numerous legal experts about Trump's potential pathway to the Supreme Court — which he could conceivably reach after exhausting his appeal options in the state of New York.

At the state level, Mate said Trump could argue that adult film star Stormy Daniels' testimony was prejudicial or that the judge made some "clear error" in the jury instructions.

"They have to establish that there was some clear error on the part of the judge on some decisions in terms of allowing the D.A. to prosecute the case in this certain way, to allow certain testimony, including the Daniels' testimony," Mate said.

But Mate said Judge Juan Merchan was "cautious" in how he handled requests by defense and prosecution alike.

"You have to find some type of clear error or find some type of misconduct, which I think is very unlikely," Mate said. "Based on everything we've seen, I think Judge Merchan was very cautious."

At the Supreme Court, some experts said Trump could take issue with how prosecutors brought the case in the first place.

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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."

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

"We haven't seen this type of exact case play out," Mate said. "A lot of this is sort of novel. And I think on appeal, we're going to see this litigated and again."

Rick Hasen, a professor of law at UCLA, said that it's unclear if "federal election law violations could be the basis for prosecution in state court."

Trump could also bring about due process complaints, according to Hasen.

But when it comes to whether his legal arguments could hold sway in state appellate court or the Supreme Court, multiple experts said they see either zero or slim chance that Trump could come out victorious after years of appeals.

"It is generally very tough to get Supreme Court review," Hasen said. "Because it is Trump, it would certainly get more attention. I think the due process arguments are somewhat stronger than the campaign finance arguments, but both are relative long shots."

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Election and campaign finance lawyer Jerry Goldfeder said the law is quite clear, and that so were Merchan's jury instructions.

"I don't see any of that being successful," said Goldfeder, who is director of Fordham Law School's Voting Rights and Democracy Project, and a longtime legal counsel for mayors, governors and presidential candidate. "The prosecution made out a very solid case."

"The statute says you cannot influence an election by unlawful means," Goldfeder said. "Unlawful means could be violations of state law or violations of federal law."

Goldfeder said he doesn't see any plausible constitutional issues that Trump could raise. 

Professor Bennett Gershman, a professor who teaches constitutional law and criminal procedure at Pace University, said there is "no federal question" for the Supreme Court to take up.

"To be sure, the federal election law did come up in the judge’s instructions as a basis for the jury to raise the false records to a felony, but we don’t know – and we will never know because jury deliberations are secret – whether that law mattered to the jury, or whether several other legal options triggered the felony convictions," Gershman said. "Federal law may have been an abstract and unnecessary issue in the case."

He added: "Only when the federal question is an 'adequate and independent' basis for the judgment – in other words, the federal question was the reason for the result or contributed significantly to the result  - does a federal court have jurisdiction. In this case there is obviously no clear – or even implicit – basis for the jury’s verdict."

Early on in the Manhattan proceedings, Trump tried to move the case to the federal court — but that request was denied.

Robert Peck, president of the D.C. law firm Center for Constitutional Litigation, pointed out that a federal judge ruled that federal election law did not preempt New York's statute or the prosecution of the former president.

Trump initially appealed the decision and then agreed to dismiss the appeal. 

"There is an adequate state ground for the prosecution and that forecloses Supreme Court jurisdiction on that issue," Peck said.

By Marina Villeneuve

Marina Villeneuve is a staff reporter for Salon covering Trump's legal battles and other national news focusing on major legal and political narratives.

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