Donald Trump’s criminal record is an ongoing story.
The former president’s current trial schedule means he will arrive at Election Day as a convicted felon.
But legal scholars predict that Trump will use his newly granted executive immunity to pull off an unprecedented legal maneuver to delay the hush money trial, currently scheduled for September 18, until after the electoral vote.
Two days before the verdict is due to be handed down, they expect Trump to seek an interlocutory appeal, something that has never before been granted by the New York Court of Appeals, or indeed most state appeals courts.
An interlocutory appeal is a legal term that refers to a type of appeal that is filed before a case is concluded at the trial court level.
Former Manhattan prosecutors and judges told Business Insider that New York state criminal procedure law does not allow for pre-trial appeals to challenge the admissibility of evidence against Trump, something he has already indicated he intends to seek.
According to New York trial and appellate law experts, defendants can only appeal a conviction after sentencing, not before.
“This is clear law,” meaning it’s well established and beyond debate, former Manhattan financial crimes prosecutor John Moskva told BI.
But Trump’s lawyers say they have something up their sleeve that overrides written state-level law: a major new legal obstacle called executive immunity.
Donald Trump and attorney Todd Blanche in a hallway at the Manhattan hush money trial. Justin Lane/Getty Images
The fight for immunity
The U.S. Supreme Court ruled last month that a president’s official acts cannot prejudice a criminal prosecution, and Trump now says that’s exactly what happened wrongfully when he was convicted of 34 felony counts of falsifying business records to hide a hush money payment to porn star Stormy Daniels on the eve of the 2016 election.
For that reason, Trump is asking the judge, state Supreme Court Justice Juan Marchan, to throw out the entire case. Marchan argues that some of the evidence against him relates to his official duties during his first and second years in office, including compromising conversations with former White House counsel Hope Hicks about hush money payments.
Manhattan prosecutors counter that the official acts evidence is inconsequential — “just a small part of a mountain of testimony and documentation,” as court documents put it — and that the convictions should therefore stand.
Marchan has promised to hand down a written ruling on September 16, just two days before the scheduled sentencing date.
Legal obstacles to consider
Legal scholars expect Marchan to side with the prosecution, and they expect Trump to immediately begin sabotaging his immunity through the state appeals court hierarchy and, if necessary, the federal courts of appeals.
They predict Trump will not stop the violence until he finds a judge willing to “stay” the trial, which could come with probation, community service, fines and zero to four years in prison.
Constitutional and appellate law experts said the ruling will likely remain on hold as the interlocutory appeal drags on in an attempt to overturn Marchan and throw out the entire case based on official conduct evidence.
“Some of his claims are not outlandish,” said Michelle Paradis, a lawyer who teaches national security and constitutional law at Columbia Law School.
Trump lawyers Todd Blanche and Emil Bove first hinted that this was their strategy in an Aug. 14 letter to Marchand asking him to delay the ruling until after the election.
Trump’s Manhattan prosecutors acknowledge this is a legal issue. On August 16, they declined to take a position on whether the sentence should be delayed, instead leaving the timetable to Judge Marchan “in light of the defense’s newly expressed position” that an interlocutory appeal is planned.
No changes to the date had been made by Friday, and Trump is now scheduled to appear in court on September 18th.
An excerpt from a letter sent by New York Supreme Court Justice Juan Marchan to parties in the hush money lawsuit earlier this month. New York State Court System
“Mr. Bragg’s willingness to defer the question to the judge shows that even the district attorney recognizes the strength of Mr. Trump’s case,” Paradis said, referring to Manhattan District Attorney Alvin Bragg.
A spokesman for the district attorney’s office declined to comment, and lawyers for Trump did not immediately respond to a request for comment.
The Supreme Court may be able to help
Donald Trump sits at the defense table with lawyers Todd Blanche (left) and Emil Bove in his Manhattan hush money trial. Pool/Getty Images
Moskva, a former Manhattan financial crimes prosecutor now with the law firm Lewis, Buck, Kaufman & Middlemiss, believes Trump will quickly be laughed out of court if he begins appealing at the state level.
He said it was “arrogant and wrong” to claim the state appeal was similar to the Supreme Court case.
But experts say Trump is unlikely to take “no” for an answer if the state’s appeals fail.
“If the New York court denies the right of appeal, you can challenge the decision in federal court,” Paradis said. If the federal district court in Manhattan refuses, “you can appeal to the United States Court of Appeals for the Second Circuit.”
The professor added that Trump could always ask the Supreme Court for an immediate stay of execution if the stay is not granted, and that the court has been “fairly sympathetic” to Trump.
“But when we look at similar precedents in national security, foreign affairs and even attorney-client relationships, Trump can make a real argument in support of an interlocutory appeal,” Paradis said.
Meanwhile, Trump’s hush-money case will remain in limbo, undecided and unconfirmed, while the safeguard of whichever appeals court Trump reaches determines whether the entire case should be dismissed because Manhattan prosecutors improperly relied on the kind of “official acts” evidence that is now barred from being used against the former president.
Frank Bowman, a law professor emeritus at the University of Missouri, predicts that New York appeals court judges “will say Marchan has made a ruling, which is narrow and evidence-based in nature, and the best time to address that is during a post-conviction appeal.”
“At best it will take weeks, probably months,” he predicted.
Still, “it’s a strange world out there,” he joked. “Anything can happen.”
