The Trump game plan is, before the date of the decision, to repeatedly attack the process as rigged, and then when you lose, say I told you so. Trump did that leading up to the 2020 election, which he lost, and the New York County criminal trial, where he was convicted of all 34 counts of falsifying business records in the first degree. He also did it before he lost both Jean Carroll defamation trials and the Attorney General’s civil proceeding against the Trump organization.
The arguments mostly strongly raised by Trump were never presented in court. This was by design. Trump can always say that the claim has merit because no court decided against him.
For example, as it relates to the criminal trial, Trump claimed that the case was politically motivated and that the judge is corrupt and conflicted. Yet Trump never made a motion to dismiss the case on selective prosecution or equal protection grounds. Trump never made a motion to disqualify the judge. Likewise, most of the claims about the 2020 election were never raised in court. Those which were raised in court were rejected.
It is amusing to hear the Trump crowd attacking Judge Merchan while having no problem with Judge Cannon. If Merchan should be disqualified because of his daughter’s political activities, how much more so should Judge Cannon, who owes her job to Trump since he nominated her to be a District Court Judge.
They also are attacking the jury. Here they at least made a motion to move the trial, which was denied, and is a loser on appeal if raised. One of the arguments is that Manhattan votes Democratic. Trump made this comment again a few days after having a rally in the Bronx with a large turnout with a claim that he could win New York State.
There are problems with this demographic argument. Firstly, not all of Manhattan votes Democratic. Thus, there would be expected to be at least one Republican on the panel. In any event, the premise is fundamentally flawed. The assumption is that if a juror is a Democrat they could not be a fair juror. There is no basis to make that argument. It is like saying if a Democratic leader was a defendant in a Republican county, no one on the jury would give the defendant a fair trial. It would open a Pandora’s box. For example, you can say that white jurors cannot be fair if there is a Black defendant and a white victim. This would destroy faith in the jury system. Furthermore, in criminal cases, there are extra protections for picking a jury than there is in civil cases. A defendant is limited in the number of potential jurors that he can exclude for any reason. However, there is no limit to the number of potential jurors who appear to be biased that can be excluded. Thus, potential biased jurors will be found and not put on the panel.
The jurors in this case are heroes. It would have been easy to get out of the case. It is a headache and there is always a chance that if you are discovered, you and your family will be hounded. Yet the jurors, including two lawyers, did their civic duty. You can see from the notes that they sent to the court that they were carefully going through the charges.
They also argue that Trump was not charged in any court with the underlying crime that makes falsifying business records into a felony. That’s not the standard, as mentioned in the jury instructions. “For the count of Falsifying Business Records in the First Degree, the intent to defraud must include an intent to commit another crime or to aid or conceal the commission thereof. Under our law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.” Nevertheless, there may be an issue on appeal relating to the court allowing the jury to pick one of three crimes as the underlying crime and the jurors not having to all pick the same crime. There may also be an issue about limiting the scope of Trump’s witness who wanted to testify about Federal election law. There could be other rulings made at trial that did not get much attention.
Critics are also attacking Trump’s counsel for how he conducted the case. As an appellate attorney who represents individuals convicted of a crime on appeal, I hear all the time that the system, or their attorney, is the reason why they were convicted. To put it another way: The jails are full of individuals who blame their incarceration on everyone else, including their lawyers and the system.
There are definitely cases where mistakes were made at trial or at a hearing. I have had success winning on appeal based on these grounds. However, generally, by far, most convictions are affirmed on appeal.
I don’t expect Trump to go to jail. Home confinement is a longshot, but the chances may increase if Trump is uncooperative with the probation officer and/or makes comments during the interview or at sentencing which disparage the Court, the judicial system, and the district attorney. The Court may also consider his violating the Court’s gag order.
After Trump is sentenced in July, he then can appeal to the Appellate Division First Department. I would expect that Trump will get a stay (hold) of any sentence until the appeal is decided. Trump’s team already has the transcripts and trial exhibits. They could work on the appeal and have it ready to file right after he is sentenced.
It is unfortunate that the leadership of the Republican Party has attacked the verdict and the process. As I said last week, this is one more indication that they only like the system if they win. When we need leadership and courage, we see Senator “Little” Marco Rubio and fellow Republicans who are groveling for the VP spot. The same attitude is found in elected officials from the House Speaker on down. They should look to the jurors as an example of courage to do what’s right for your country instead of destroying confidence in its institutions for personal and political gain.
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
