Yale Law Professor Jeb Rubenfeld, who teaches Advanced Constitutional Law, has advice for the Trump team that could possibly overturn his ‘guilty’ verdict before the 2024 election.
Trump’s team will ask Judge Merchan to throw out the jury’s verdict and find Trump innocent. Marchan won’t do that. He’s probably looking to imprison him. The two sides will argue about the sentencing. The sentencing is July 11th. That triggers the team’s right to appeal. The appeal goes to the appellate court, then to New York’s highest court, the Court of Appeals. After that, he could go to the Supreme Court To determine the constitutionality of the verdict. As Professor Rubenfeld says, it will take years. The election will be long over.
This could determine the election’s outcome, and if the appeal is reversed years later, it will probably be too late. That’s called irreparable harm.
If so, District Attorney Bragg and Judge Merchan will have unlawfully interfered with the election and have decided the next election’s outcome through unconstitutional means.
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There is another way.
“Well, is that where we are? So, are we stuck with that possibility? Well, believe it or not, there is one other avenue that the Trump lawyers could pursue. They could sue in federal court and ask for an emergency temporary restraining order.”
“Restraining order of what? Well, let me tell you something that you might not know. You’ve probably been reading in the press if you’ve been reading about this case that Trump is already a “convicted felon.”
The jury has convicted him. He’s a “convicted felon.”
“Well, guess what? That’s not true.”
“You’re not a convicted felon because of a jury verdict. You’re not convicted unless the judge enters a judgment of guilt against you. The judge still has the power, as I told you before, to throw out that verdict and enter a judgment of acquittal. You are not convicted until the judge enters that judgment of guilt.”
“Now, in New York, it’s very likely that Judge Merchan will enter that judgment of guilt against Trump on the same day that he issued sentencing. That’d be July 11th.”
“So what would this federal case be about in this federal action? Trump would sue District Attorney Bragg and other state actors and ask the judge, the federal judge, for an emergency temporary restraining order halting Judge Merchan from entering that judgment of guilt until the federal courts have had an opportunity to review and rule on the serious constitutional arguments that exist here.”
“Let me tell you why I think that might be a very important thing to happen. Because going after, criminally, a former president of the United States and somebody who is running for president now, that’s a VERY BAD LOOK for this country.”
“It’s an especially bad look when the folks bring in the case and the judge deciding it are members of the opposing political party. And it’s an even worse look when the crime is so unclear that the state is hiding the ball about what the actual charges are right up through the trial and indeed into the trial.”
“And even now, we don’t know exactly what the jury found Trump guilty of. If you’re going to go after a former president and somebody who’s running for president now the poll leading candidate, if you’re a member of the other party and you’re going to do that, YOU BETTER HAVE THE GOODS. You better not be pursuing some novel legal theory where you have to hide the ball. It’s not even clear what the charges are.”
“That could be a very dangerous precedent for this country. A very bad and dangerous precedent.” “That’s why it’s so important for a federal court to review the constitutionality of this prosecution and decide, was it constitutional, was it not?”
“The only way to achieve that before the election takes place is for the Trump team to file an action in federal court and ask the federal court to temporarily hold off the entry of the judgment of guilt until the federal courts and maybe the Supreme Court itself can on an emergency basis adjudicate the likelihood of success of these constitutional arguments.”
“If that doesn’t happen, then that irreparable harm danger that I mentioned before, well, that’s where we are.”
“But if it does happen, the nation could get a ruling from the federal courts, even the Supreme Court of the United States, before the election takes place.”
“Maybe that’s what the nation needs, and maybe that’s what the law requires here. So if I were Trump’s lawyer, that’s probably what I would do.”
Maybe Donald Trump should hire Jeb Rubenfeld.
Part 3, summarized here, begins at 16:39. Part 1 covers the basics, and Part 2 reviews the constitutional issues on which Trump’s team can appeal.
The Constitutional Issues
Selective Prosecution: It is unconstitutional to go after Trump because you don’t like him, but it’s hard to prove. The only way to prove it but there might be a comparison with Hillary Clinton.
The Indictment: Every criminal defendant has the right to know the charges, but Bragg has not revealed the underlying offense.
The Information and Bill of Particulars did not tell them what the underlying second crime was. Bragg claimed New York does not have to tell what the crime was, and they can go forward with any of the three crimes. Judge Merchan told the jury to pick and choose, which appears to be a violation of the 6th Amendment.
Unanimity: Merchan told the jury they did not have to be unanimous on the second crime.
There are other errors.
First seen at Kyle Becker’s X feed.
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