Donald Trump’s rap sheet is a work in progress these days.
With the former president current court schedule, he will face Election Day as a convicted felon.
But legal scholars predict Trump is poised to use his new presidential immunity powers to pull off an unprecedented legal maneuver that will delay his secret money sentencing, now scheduled for Sept. 18, until voters cast their ballots.
Two days before his sentencing, Trump, they say, will ask for something that has never been allowed in New York’s appeals courts, or in most states for that matter: an interlocutory appeal.
Interlocutory is just a fancy legal term for the type of appeal that is filed before the case ends at the trial level.
Former Manhattan prosecutors and judges told Business Insider that New York’s criminal procedure law simply does not allow for the kind of pretrial, interlocutory appeal that Trump has already signaled he plans to seek, one that challenges the admissibility of evidence used against him.
Defendants can appeal their convictions only after, not before, sentencing, according to trial and appellate law experts in New York.
“It’s a black-letter law,” meaning it’s established and unchallenged, former Manhattan financial crimes prosecutor John Moscow told BI.
But Trump’s lawyers have something up their sleeve that they say trumps black letter, state-level law: a shiny new, big old legal monkey name called presidential immunity.
Donald Trump and attorney Todd Blanche in the hallway outside his Manhattan money laundering trial. Justin Lane/Getty Images
Fight for immunity
The US Supreme Court last month found that the president’s official actions cannot be used against him in a criminal prosecution. Now Trump says that’s exactly what happened, wrongfully so, when he was convicted of 34 felony counts of falsifying business records to hide a secret payment to porn actress Stormy Daniels in the run-up to the 2016 election.
Trump asked his judge, state Supreme Court Justice Juan Murchan, to dismiss the entire case on that basis. He argued that some of the evidence used against him involved official actions from his first and second years in office, including an incriminating conversation he had about the payment of hush money with former White House adviser Hope Hicks.
Manhattan prosecutors argued that any formal evidence was inconsequential — “a sliver of the mountains of testimony and documentary evidence,” as court documents put it — and so the conviction should stand.
Murchan has promised a written decision on September 16, just two days before the scheduled sentencing.
A legal wrench to reckon with
The lawyers believe that Murchan will side with the prosecutors. And they expect Trump will then immediately begin swinging his immunity wrench through the layers of state appeals courts — and federal appeals courts, too, if necessary.
They predict Trump won’t stop spinning until he finds a judge to “stay,” or delay, a proceeding in which he faces probation, community service, fines and zero to four years in prison.
The verdict is likely to remain on hold, constitutional and appellate law experts said, as this interlocutory appeal drags on in an attempt to overturn Murchan and dismiss the case in its entirety based on official records and evidence.
“He does have some not-so-crazy arguments,” said Michele Paradis, a lawyer who teaches national security and constitutional law at Columbia University Law School.
Trump attorneys Todd Blanche and Emile Beauvais first hinted that was their strategy in an Aug. 14 letter to Murchan asking for a delay in sentencing until after the election.
Even Trump’s Manhattan prosecutors admit it’s a legal wrench to contend with. On August 16, they declined to take a position on whether the sentence should be postponed. Instead, they postponed Merchan’s scheduling, “given the defense’s newly stated position” that an interlocutory appeal was planned.
Until Friday, the schedule remained unchanged. Trump remains in court on September 18.
Part of a letter sent by New York Supreme Court Justice Juan Murchan to the parties in the hush money case earlier this month. New York Court System
“Bragg’s willingness to ask the judge the question shows that even the prosecution recognizes the strength of Trump’s argument,” Paradis said, referring to Manhattan District Attorney Alvin Bragg.
A spokesman for the prosecutor’s office declined to comment. A lawyer for Trump did not immediately respond to a request for comment.
SCOTUS can help
Donald Trump at the defense table during his hush money trial in Manhattan with attorneys Todd Blanche, left, and Emile Beauvais. Pool/Getty Images
Moscow, the former Manhattan financial crimes prosecutor who now works at Lewis Baach Kaufmann Middlemiss PLLC, believes Trump will quickly be laughed out of court when he starts appealing at 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 if his first-level appeal fails, experts said.
“If the New York courts deny him the right to appeal, he can challenge the decision in federal court,” Paradis said. If the federal district court in Manhattan says no, “he can appeal that to the second federal appeals court.”
If he is denied a stay at any point, Trump could also quickly ask SCOTUS for one, the professor added, adding that the Supreme Court has been “pretty sympathetic” to him.
“But if you look at analogous precedents in the context of national security, diplomacy and even attorney-client, Trump has a real case” for an interlocutory appeal, Paradis said.
In the meantime, Trump’s hush money case will remain deadlocked — unconvicted and unfinalized — as whatever appellate shelter he finds himself in weighs whether the case should be thrown out in its entirety because Manhattan prosecutors improperly relied on the kind of evidence for “official act” now banned for use against a former president.
Frank Bowman, professor emeritus of law at the University of Missouri, predicted that appellate judges in New York “will say that Murchan has made his decision — that it’s essentially a limited, evidentiary decision — and the best time to look at it is the post-judgment appeal’.
“At best it will take weeks, more likely months,” he predicted.
Still, “We’re in a strange world here,” he joked. “Anything can happen.”