Adam—It seems like the trial was eons ago, but the
criminal conviction against Trump is still on appeal. Yesterday, he
filed his brief. It’s long, but I’ve highlighted it for you so you can
whip through it. It’s written by Sullivan & Cromwell, that
old-school white-shoe law firm that’s among the best of the best. Trump
is rightly sparing no expense here.
In case you’re interested, here’s a rundown of Trump’s five arguments.
Federal preemption: Trump argues that the DA of NYC (“DANY”) prosecuted him for state-law violations that are preempted (and thus nullified) by federal law. While the DANY has the authority to prosecute violations of state law by state office-seekers, he lacks such authority for federal candidates.
Evidence of immune conduct:
to SCOTUS, is inadmissible because it entails official presidential
Trump argues that the court allowed evidence of conduct that, according
acts that are immune from prosecution. This evidence should never have
been admitted under SCOTUS precedent, and letting it in tainted the
jury. Trump says that this requires automatic reversal.
Faulty jury instructions:
Trump argues that the jury charge was structured so that he could be
convicted of conspiracy even if they could not unanimously agree on a
specific “predicate act.” This is against NY law and a violation of due
process.
Insufficient evidence:
Trump argues that there was no evidence that he had any intent to
defraud anyone—rendering the evidence legally insufficient to support a
verdict of guilt beyond a reasonable doubt.
Justice Merchan should have recused himself:
Trump argues that Justice Juan Merchan—who the NY State Commission on
Judicial Conduct found violated judicial-ethics rules—was required to recuse himself, and that his failure to do so prejudiced Trump’s right to a fair trial.
These
arguments are very good—especially 1 through 3, because they’re pure
questions of law. This is important because the trial judge and jury
don’t enjoy any deference on such questions.
Arguments 4 and 5 are different (although still pretty good):
Argument 4 will entail a pissing match about whether the jury could have inferred intent from the evidence it did have. All doubts will be resolved in favor of the verdict because the jury gets great deference here.
Argument
5 (in my opinion, the juiciest one) will entail disputes over whether
Justice Merchan abused his discretion on the recusal issue. He is
tasked with deciding whether his own impartiality “might reasonably be
questioned” in light of his daughter’s financial interest in a Trump
conviction and his political contributions against the very defendant before him.
On this question, he enjoys a healthy dose of deference. This
deference will be buttressed by the judicial commission’s conclusion
that he didn’t have to recuse himself even though he broke the rules.
Still, anyone can see how rotten this is, and it’s my fervent hope that
the appeals court will see how badly his actions reflect on the bench.
I’ve known a lot of judges, and they’re extremely careful about this
stuff. Justice Merchan was downright reckless, and his refusal to
recuse appears self-serving in the extreme.
Bottom
line, arguments 1 through 3 have a much better chance of a clean kill
since they will be reviewed “de novo”—from scratch, without deferring to
anyone else.
If any of these
arguments hold up (and we’re only seeing one side here), I think Trump’s
conviction will get flipped. This is most likely to happen under
arguments 1, 2, and/or 3. If so, the indictment will be dismissed.
Keep in mind, however, that even the best arguments face headwinds
because appellate judges do not like to reverse jury verdicts and prefer
not to call out their fellow judges unless they have to.
Soon,
the government will file its response brief. I’m not familiar with
NY’s rules in criminal appeals, but the deadline is probably around 30
days. This deadline will almost certainly be extended. Then Trump will
file a reply brief, and the appeals court will set oral argument. My
guess is that oral argument will happen in late Q1 of 2026, perhaps Q2.