Donald Trump’s rap sheet is a work in progress these days.
Under the former president’s current court schedule, he will greet Election Day as a sentenced felon.
But legal scholars predict Trump is about to use his new presidential immunity powers to execute an unprecedented legal maneuver, one that will delay his hush-money sentencing, now set for September 18, until well after voters cast their ballots.
Two days before his sentencing, Trump, they predict, will seek something never before allowed in the appellate courts in New York or in most states for that matter: an interlocutory appeal.
Interlocutory is just a fancy, legal term for the kind of appeal that is filed before a case wraps up on the trial-court level.
Former Manhattan prosecutors and judges have told Business Insider that New York’s criminal procedure law simply does not allow the kind of pre-sentence, interlocutory appeal Trump is already signaling he plans to seek, one that challenges the admissibility of the evidence used against him.
Defendants only get to appeal their convictions after, not before, sentencing, according to experts in New York trial and appellate law.
“That’s black letter law,” meaning well-established and beyond dispute, former Manhattan financial crimes prosecutor John Moscow told BI.
But Trump’s lawyers have something up their sleeves they say trumps black letter, state-level law: a shiny new, big ol’ legal monkey wrench called presidential immunity.
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A battle over immunity
The US Supreme Court last month found that a president’s official acts cannot be used against him in a criminal prosecution. Trump now says that’s just what happened, improperly, when he was convicted of 34 felony counts of falsifying business records to hide a 2016 election-eve hush-money payment to porn actress Stormy Daniels.
Trump has asked his trial judge, state Supreme Court Justice Juan Merchan, to toss the entire case on that basis. He’s arguing that some of the evidence used against him involved official acts from his first and second years in office, including an incriminating conversation he had about the hush-money payment with former White House advisor Hope Hicks.
Manhattan prosecutors have countered that any official-act evidence was inconsequential — “a sliver of the mountains of testimony and documentary proof” as they put it court papers — and so the conviction should stand.
Merchan has promised a written decision on September 16, just two days before the scheduled sentencing.
Trump attempted a last-minute end run around Merchan on August 29, asking a federal judge in Manhattan to take over the hush-money case. The effort — Trump’s second federal removal bid — was quickly rejected. On September 3, the judge, US District Judge Alvin Hellerstein, tersely declined to take over. He noted that federal judges do not have jurisdiction to reverse or modify a state-level verdict.
A legal monkey wrench to be reckoned with
Legal scholars believe that come September 16, Merchan will side with prosecutors.
And they expect that Trump will then immediately start swinging his immunity monkey wrench up through the layers of the state’s appellate courts — and the federal appeals courts, too, if necessary.
Trump won’t stop swinging, they predict, until he finds a judge who will “stay,” or delay, a proceeding where he faces a sentence of probation, community service, fines, and anywhere from zero to four years in prison.
The sentencing will likely remain on ice, said experts in constitutional and appellate law, as this interlocutory appeal drags on in an effort to overturn Merchan and kill the case in its entirety on official-act-evidence grounds.
“He does have some not-crazy arguments,” said Michel Paradis, an attorney who teaches national security and constitutional law at Columbia Law School.
Trump attorneys Todd Blanche and Emil Bove first hinted that this was their strategy in an August 14 letter to Merchan asking to delay the sentencing until after the election.
Even Trump’s Manhattan prosecutors are conceding that this is a legal monkey wrench to be reckoned with. On August 16, they declined to take a stand on whether the sentencing should be delayed. Instead, they deferred to Merchan on scheduling, “given the defense’s newly-stated position” that an interlocutory appeal is planned.
By Friday, the scheduling remained unchanged. Trump remains due in court on September 18.
New York court system
“Bragg’s willingness to punt the question to the judge shows that even the DA recognizes the strength of Trump’s argument,” said Paradis, referring to Manhattan District Attorney Alvin Bragg.
A spokesperson for the DA’s office declined to comment. A lawyer for Trump did not immediately respond to a request for comment.
SCOTUS may help
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Moscow, the former Manhattan financial crimes prosecutor who now works at Lewis Baach Kaufmann Middlemiss PLLC, believes Trump will be quickly laughed out of court as he begins appealing on the state level.
Claiming that his state appeal bears any resemblance to his SCOTUS case is “arrogant and wrong,” he said.
But Trump won’t take “no” for an answer should his first-level state appeal fail, experts said.
“If New York’s courts deny him a right to appeal, he can challenge the decision in federal court,” said Paradis. If the federal district court in Manhattan says no, “he can appeal that to the second circuit federal court of appeals.”
If he is denied a stay at any point, Trump can also quickly ask SCOTUS for one, the professor added, adding that the Supreme Court has been “pretty sympathetic” to him.
“But if you look to analogous precedents in the national security, diplomatic, and even attorney-client context, Trump has a real argument to make” in favor of an interlocutory appeal, Paradis said.
Trump’s hush money case, meanwhile, would remain in limbo — unsentenced and unfinalized — as whatever appellate safe haven he’s landed in weighs if the case should be thrown out in its entirety because Manhattan prosecutors improperly relied on the kind of “official act” evidence now forbidden for use against a former president.
Frank Bowman, a University of Missouri emeritus law professor, predicts that New York’s appellate judges “will say Merchan has made his decision — that it’s essentially a limited, evidentiary decision — and the best time to address that is on appeal following sentencing.”
“It will take weeks at best, and months more likely,” he predicted.
Still, “We’re in bizarro world here,” he joked. “Anything can happen.”
