PHOTO: Alan Dershowitz (left); and former President Donald Trump. (Mario Tama, Michael M. Santiago/Getty Images)
Amid allegations that the trial was politically driven and riddled with bias, there are calls for SCOTUS to intervene before the NY state appeals process is exhausted.
By Tom Ozimek | The Epoch Times
Amid speculation about how former President Donald Trump’s appeal of his conviction will play out, retired Harvard Law professor Alan Dershowitz said he thinks there’s a way the former president can expedite the process to get it before the U.S. Supreme Court before the November presidential election.
President Trump vowed to appeal his guilty verdict in a case in which he was charged with 34 counts of falsifying business records in order to conceal non-disclosure payments as part of an alleged bid to influence the 2016 presidential election when he was a candidate.
While legal experts told The Epoch Times that standard practice is that all possible appeals in the New York state court system must first be exhausted before an appeal ends up before the Supreme Court, there has been speculation about whether that process could be accelerated.
Amid allegations that the trial was politically driven and riddled with bias, there have even been calls for the Supreme Court to intervene at an earlier stage, before the state appeals process is exhausted.
For instance, House Speaker Mike Johnson (R-La.) said that the Supreme Court should “step in” and overturn the conviction, with the speaker arguing that the circumstances of the case have led to an erosion of public faith in America’s justice system.
Mr. Johnson, and others, have argued that the case was a backhanded attempt to tarnish President Trump’s reputation in the minds of voters and undercut his chances at election, and that the Supreme Court should have a chance to weigh in before voters head to the polls in November to restore a sense of fairness.
Fast-Tracking the Appeal?
The retired law professor said that President Trump’s legal team should push to get its appeal heard immediately before the New York Court of Appeals, which is the highest court in New York state and the last step before a petition can be filed at the U.S. Supreme Court.
However, appeals to this court are not automatic and generally require permission from the Appellate Division of the New York Supreme Court—or from the New York Court of Appeals itself.
“He should make an appeal to the New York Court of Appeals asking them to bypass the Appellate Division because he’s not going to get justice in the Appellate Division,” Mr. Dershowitz said, speculating that Appellate Division judges are elected and would be more likely to bow to pressure to reject the Trump team’s appeal.
“The Appellate Division or Manhattan judges that are elected and they don’t want to have to face their families and say you were the judge who allowed Trump to become the next President of the United States.
“They don’t want to be Dershowitz’ed,” he said, referring to blowback he received after defending President Trump in his first impeachment trial in the Senate.
“They don’t want to be treated in New York, the way I have been treated in Martha’s Vineyard and Harvard and New York because I defended Donald Trump, so they should skip the Appellate Division,” he continued.
Instead, Trump attorneys should directly petition the highest appeals court in New York state and ask for an accelerated process to get their case before the Supreme Court.
“Go to the New York Court of Appeals, ask for an expedited appeal. In the meantime, prepare for an expedited appeal in the United States Supreme Court and say that this was a rush to try to get this case, a verdict of conviction before election, and the Supreme Court of the United States has an obligation to review this case before the election so that the American public knows whether or not Donald Trump is guilty or not guilty of these made up crimes,” Mr. Dershowitz said.
The former Harvard law professor has in the past accused Manhattan District Attorney Alvin Bragg of unfairly building the case against the former president by using a novel legal theory to elevate misdemeanor business falsification charges into a felony by alleging that the records fraud was carried out to conceal an underlying crime.
In the Trump case, the underlying crime that was alleged was seeking to interfere in the 2016 election by using non-disclosure agreements to prevent unfavorable media coverage about an alleged affair with adult film actress Stormy Daniels that the former president has denied.
Mr. Dershowitz said that Trump attorneys should consider supporting their petition to the New York Court of Appeals by highlighting two issues, with the first relating to the fact that the state’s highest court recently reversed Harvey Weinstein’s rape conviction because the trial judge prejudicially allowed testimony on allegations unrelated to the case.
The retired law professor alleged that Judge Juan Merchan “improperly” allowed irrelevant salacious details of President Trump’s alleged tryst with Ms. Daniels to be admitted into the record, while also raising the so-called “missing witness” issue.
The second point that Mr. Dershowitz said would bolster a petition for an expedited review to the New York Court of Appeals is that the judge allegedly didn’t instruct the jury properly on why prosecutors didn’t call former Trump Organization CFO Alan Weisselberg to testify in the case.
The judge was open to having Mr. Weisselberg testify but the prosecution didn’t call him, framing him as an unreliable witness due to earlier perjury charges in an unrelated case, while the defense also didn’t call him, citing the fact that prosecutors had undermined his credibility.
Mr. Dershowitz argued that failure to call Mr. Weisselberg left a hole in proving the case because it was expected that his testimony would have undermined some of the claims from another witness, former Trump attorney Michael Cohen, who testified against the former president.
“Number two, I think would be the failure to give an instruction on the missing witness,” Mr. Dershowitz said. “The way the judge and the prosecution handled Allen Weisselberg really denied the defendant the right to a presumption that the only reason he wasn’t called was because he would not have corroborated the very important testimony, lying testimony of Michael Cohen.”
Mr. Dershowitz said those two issues are what Trump attorneys should highlight in their request for an expedited appeal.
“This is a winnable appeal,” he insisted.
The Epoch Times was unable to reach Trump counsel for comment on Mr. Dershowitz’s remarks.
The guilty verdict made President Trump the first former president in U.S. history to be convicted of a crime.
Other Legal Experts Weigh In
Hans von Spakovsky, senior legal fellow at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told The Epoch Times that he shares frustration expressed by critics of the verdict, including the House speaker, at what he described as an obvious “miscarriage of justice.”
Mr. von Spakovsky said that the prospect of the Supreme Court getting before the appeals process plays out in New York state courts is not realistic.
“There are certainly issues that give the Supreme Court jurisdiction over the state court conviction, given the fundamental violation of Donald Trump’s substantive due process rights under the U.S. Constitution in the way the trial judge and prosecution mishandled the case,” he said.
“But I don’t believe the Supreme Court will take the case until the state appeals process is exhausted.”
Jonathan Emord, a constitutional law and litigation expert, told The Epoch Times that he believes that the trial violated President Trump’s due process rights and was “riddled with bias” but that he, too, sees little hope for Supreme Court intervention until the New York Court of Appeals has weighed in.
“The fact of the matter is that a trial violated President Trump’s due process rights and was riddled with bias, evidentiary rulings that deprive him of a full and fair opportunity to present his case,” he said.
“On the merits, there really is no foundation for a legal basis for decision because it’s a novel theory of law that’s been applied,” Mr. Emord said of the way the case was brought by Mr. Bragg.
Asked why Mr. Johnson suggested that the Supreme Court should step in at an earlier-than-normal stage of the appeals process, Mr. Emord suggested it’s because of “exceptional circumstances.”
“He’s arguing that there are exceptional circumstances that would warrant the Supreme Court to intervene and while there certainly are exceptional circumstances, I suspect that the Supreme Court would not intervene in the first instance, but would allow an appellate court in New York to issue a determination,” he said.
Short of a successful appeal, President Trump could now be facing such penalties as jail time, probation, or fines.
Sentencing in the case has been set for July 11, just four days before the Republican National Convention where President Trump will be formally designated as the Republican presidential nominee.
While there are no laws barring President Trump from running for the White House as a convicted felon, an overturned verdict before Election Day would likely boost his chances of victory. ##