Legal AF by MeidasTouch - Trump’s LAST DITCH Scheme IS DOOMED to Fail

Episode Date: June 12, 2024

Michael Popok —a practicing NY lawyer—explains Trump’s unlikely path to have his criminal conviction overturned on appeal in New York, when he can actually take his appeal, the likelihood that NY’s highest court will even be interested in such an appeal, the timing of the appeal late process, and whether the Supreme Court will bail out Trump. Head to https://TryFum.com/legalaf and get a FREE GIFT with the JOURNEY PACK today when you use code LEGALAF Visit https://meidastouch.com for more! Join us on Patreon: https://patreon.com/legalaf Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Learn more about your ad choices. Visit megaphone.fm/adchoices

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All new episodes of FX's The Bear are streaming June 27th, only on Disney Plus. This is Michael Popak, Legal AF. It's time to talk about Donald Trump's appeal chances. Is he going to take an appeal? What's it going to be an appeal on? Is it going to be reversed his conviction by the appellate court? Which appellate court?

Are we talking about the state appellate court or the federal appellate court? And when can he appeal? And what happens to his sentencing as a result? I'm going to break it all down for you right here on this particular hot take. Special shout out to Stavis, he did a very nice job as also a practicing lawyer in New York in the New York Times op-ed piece about the appellate procedure in New York. I'm gonna break it all down for you here. First, Donald Trump has a conviction obsession. He can't stop talking about the conviction on the campaign trail

just to switch over to politics as part of law and politics here on our legal AF hot take. And so that obsession, he talks about it constantly, the lawless conviction, the witch hunt, the kangaroo court, disparaging and undermining the validity of 12 jurors in New York that took time out of their busy lives to serve their civic duty and listen to the evidence and convict him. And that obsession, of course, while it may work to foment and whip up his red meat base, it doesn't do well with the swing voters. And that's what a lot of Republican operatives are worried about.

In other words, keep talking about your conviction, Donald, because all you're doing for making sure that you're going to get the votes you are already going to get, you're losing votes that you need in order to win the election. Good on him. Let's switch places now, switch and talk about the appeal. Donald Trump and his proxies, Steven Chung, his spokesperson, Alina Habba, even Todd Blanch, when he gets the opportunity as his lawyer, talks about his great likelihood of success on appeal. Let me shoot that down right now. The chances of Donald Trump

reversing his conviction are slim. Slim to none. Just to give you a statistical backdrop, only 5% or so of New York convictions are reversed on appeal. It's not impossible. There are certainly convictions that are reversed on appeal, but 95% of convictions are either not appealed or they're affirmed on appeal. So that's the steep mountain that Donald Trump has to climb, 5% chance. And then you have to have reversible error, error in the record that led as the appellate court determines directly to the conviction. Reversible error, not harmless error in contrast. Reversible error means the person would not have been

convicted but for this error that happened during the trial. Something about the indictment, something about the crimes that have been charged, something about evidence that was let in or shouldn't have been let in. Something about a certain type of testimony, something about a decision by the trial judge in exercising his discretion to dismiss certain counts

or not dismiss certain counts, allow certain witnesses or not allow certain witnesses, make decisions about if Donald Trump testified, what he could testify to, those types of decisions. Now, the Sixth Amendment of our US Constitution does not guarantee a perfect trial. There's no such thing as a perfect trial. I should know, I put on 35 of them in my career.

It's not a perfect trial that you're guaranteed. It is a fair and impartial trial. Those two things are different. Error happens every moment, every day, in every trial. If it's harmless error, meaning it did not lead to the conviction, it's just part of the, you don't get a perfect trial, you get a fair trial, you know, mix.

What's an example of a harmless error? You know, during the, this was in Stavisavis' op-ed piece in the New York Times, and it's a good one. It's a good example. When Stormy Daniels took the stand and testified, a lot of sordid, gory details about the sex related to her and Donald Trump and about her fear potentially that she wasn't able to leave and that she was being physically prevented from leaving the room suggesting that this was not consensual sex.

In other words, another sex crime by Donald Trump, having already been a judged of a sex crime in a civil context in the E. Jean Carroll case for abusing her sexually. That was the problem. But that's another one of those examples of it's error for the judge to have allowed that or for that testimony to have been elicited. It is harmless error because it didn't lead or couldn't possibly be argued that it led

to his conviction, Donald Trump's conviction. They didn't convict him because they didn't like that one comment that Stormy Daniels made about the nature of her sex with Donald Trump. That's harmless error. If it's error at all, again, reversible error is the one that leads to the conviction. Should Michael Cohen have taken the stand? The answer to that is yes. Should a mistrial have been granted by the judge when he didn't grant it? Was his decision not to grant a mistrial, was that an error? If that is an error, that's reversible error. The judge making a decision to allow the indictment to go forward with the two crimes joined together in order to make this into a felony. Business record fraud in New York, as everyone now knows or should know, is a misdemeanor in New York. However, if it is attached to a second crime,

if there is an intent in making the business record fraud, if there is an intent to commit another crime or conceal the commission of another crime by unlawful means, then you have a felony. So that is where Donald Trump will likely try to argue for reversible error, that the judge allowed the second crime and he charged the jury on the second crime, which is New York election interference, meaning that Donald Trump tried to bury the Stormy Daniels affair by a payoff, which was an illegal campaign contribution,

improperly and never reported under the Federal Election Commission Act, the federal election crime, or it was a tax issue because it was listed improperly on the books and records of the Trump organization, thumbs up on that, as a legal expense to Michael Cohen. That is where they're gonna try to pick at the thread and unravel this prosecution and argue

it was a reversible error to allow the judge, for the judge to allow this case to go forward with that as the second predicate act. Now let's unpack that for a minute. First of all, any argument that Donald Trump wasn't aware of the criminal charges against him and therefore couldn't mount a proper defense, that was sort of taken away by Judge Mershon who in the middle of February in a 20 or 30 page decision laid out exactly what the indictments charges were against Donald Trump

and what he had to defend against. So that takes away the argument that, well, we couldn't figure it out from the indictment. We didn't know. And then it seemed to be a little bit wishy-washy during the presentation of the evidence. We didn't know exactly what the crimes were being charged with. That was sort of taken away. The knees were cut out from under that argument in mid-February by Judge Marshawn in issuing this very substantial substantive ruling about the nature of the crimes. So the only issue is going to be whether the, there's two stops on the appellate train in New York. First stop is the appellate division first division. Let me try it again, because I'm a member of it, I should get it right. The Appellate Division First Department,

the Appellate Division is the intermediary appellate court in New York, and then the state is divided into regions or in divisions, and the First Division, First Department, if you will, for New York covers Manhattan. Have you heard that the flavored air category is quickly becoming the leading alternative to vaping and smoking? It's a whole new movement towards better habits,

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success story. For a limited time, use my code LEGALAF to get a free gift with your Journey Pack. Head to tryfume.com. That's T-R-Y-F-u-m.com and use code LegalAF or scan the QR code on the screen to get a free gift with your order today. You have as a criminal defendant who's lost, you have an automatic right, mandatory right to appeal to the first level court, right? The appellate department first,

the appellate division first department, right? That's goingate department first, you know, the appellate division first department, right? That's gonna be where he's going as a matter of right. And they're gonna have to look at these issues. Now, we know Donald Trump's gonna throw everything at the wall and see if anything sticks. He's gonna raise all the errors that he says the judge Rashad made, but the focus here, the only one that really will probably, that the court will find interesting, the appellate court will find interesting, is about the second crime issue and whether it was properly charged, if it was properly proven. Of course, you always have

the fact that 12 jurors did unanimously fine against 34 counts against Donald Trump. So that's going to be the laser focus. Now, if they decide, which I believe they will, that the second predicate act of this particular crime, an intent to commit another crime or conceal the commission of a crime and then having that knit in with the federal election crime or the tax fraud crime, that's going to be proper. Then if they decide that, really, the appellate opportunities for Donald Trump have just narrowed considerably, because the chances of getting that second appeal to the Court of Appeals is even narrower. That is not mandatory. The intermediary appellate court is going gonna have to decide that they need guidance from the court of appeals.

It's not an automatic right to get an appeal to the highest level court in New York, the court of appeals. You have to get permission from the intermediary appellate court. And that's probably unlikely. Only if it's something that they think there needs to be clarification

about this particular body of law and the use of this body of law by future prosecutors and that type of thing. But short of that they don't even take the case at the appellate at the highest level of New York. It kind of dies right there at the intermediary appellate court where most appeals do die in New York. They get resolved at that first level intermediary appellate court, and they never get any higher. That's unlike other states where you have a right to go to the Supreme Court of that state, for instance,

for other reasons. But New York, it's a much narrower path to appeal. And then you've got, I just want to address quickly this argument that keeps getting floated by Todd Blanche and other people around Donald Trump, usually ones who are not appellate lawyers, which is that there's a chance for the United States Supreme Court to weigh in. First of all, they're not going to weigh in unless and until there's a decision by the

highest court of that particular state. So if it never gets to the Court of Appeals in New York, the likelihood of it ever getting to the Supreme Court is almost zero. But let's say it did get to the Court of Appeals. Even then, there has to be a fundamental United States constitutional issue that at least four of the judges originally see as being presented by the conviction of Donald Trump. This is not a case where there is executive privilege.

This is not a case where he was even president during the time. This is not a case where there is immunity or supremacy clause issues. And those are the ways that the Supreme Court finds a way in as a hook into a case. So that while they can try some sort of writ of habeas corpus and jump over and have the United States Supreme Court take an appeal, that is even a narrower path and the chances of that are well under one percent. It's infinitesimal. And so while they talk about it because it gives them a lot of, they get a lot of mileage out of it, they block the sun with these arguments. In reality, they're not going to get a United States Supreme Court decision or involvement, not even with this MAGA right-wing six to three United States Supreme Court.

So it's going to likely die with a loss for Donald Trump at the intermediary appellate level of the first department. Now timing, let me just end the hot take on timing. The Donald Trump can't take an appeal, emergency or otherwise, until the judgment of conviction is entered by Judge Mershon, which hasn't happened yet. There's been a verdict of conviction, but a judgment of conviction when it makes him an officially convicted felon is on July 11th at the same time of the sentencing. At the sentencing hearing where Judge Mershon will mete out a sentence that fits the crimes,

and I've done other hot takes and so have other contributors about the range, from probation community service all the way up to a top of 20 years and everything in between, that's all on July 11th. Then that whole set of decisions, the judgment of conviction, along with the sentencing, kind of come together in a package and that can be appealed from by Donald Trump, as I said, as a right, as a right mandatory appeal to the first department. That takes a while. The sentence will likely be abated or stayed

until the appeal happens. The appeal could take over a year or more. And I don't really see a purpose for him, especially if the sentence has been stayed, which the judge is likely to do, frankly. He's not gonna remand him immediately, even if there's incarceration involved, given his first time offender

and not necessarily a violent criminal, although we all like him to go in. It's unlikely that's gonna happen. So he'll stay out. There'll be a full appeal on briefing. It's probably not gonna be until a late 2025 event when we get a final briefing and an opinion, a decision by that appellate division.

And then he'll have to try for another appeal. We're talking about a 2026-ish final resolution of the conviction of Donald Trump and his sentencing. That's just the way it's going to be. And even if it now if he ends up getting somehow restored to the presidency, he's then going to argue that he can't be bothered with any of these appellate issues while he's in office for something that happened before he was a president and then the appellate courts are gonna have to decide whether and that could go to the United States Supreme Court whether that those proceedings can continue if the off chance that he somehow gets restored to

the presidency. We'll follow it all just like I did there on Midas Touch YouTube channel and on Legal AF and after hearing this description on this outtake now You know why we called it four years ago Legal AF. It's on Wednesdays and Saturdays at 8 p.m Eastern time right here on this YouTube channel. You knew that you're already here stay here free subscribe We're building this network with our bare hands help us get the 3 million free subscribers and then join us Wednesday Saturdays 8 p.m Eastern time for YouTube version of the legal AF podcast. We curate the top five stories, the intersection of law and politics. We bring it to you right here with lawyers who know what they're talking about and then on audio podcast platforms of your

choice. If you like what I'm doing here on these kind of hot takes, give me a thumbs up and leave a comment. It sends the message that you want to see more of it. It's not ego, it's algorithms. And then you can follow me on all things social media at MSPOPOC and my entire body of work, if you can believe it, for hot takes, is over on YouTube, MidasTouch. Look under playlist or contributors,

you'll look for Michael Popok, you'll find, I don't know, I think it's 1,200 hot takes at this point. So until my next hot take, until my next Legal AF, this is Michael Popak reporting. Heary, heary, Legal AF Law Breakdown is now in session. Go beyond the headlines and get a deep dive into the important legal concepts you need to know and we discuss every day on Legal AF.

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