In rushing to get a predictable if deeply flawed felony conviction in the Donald Trump-hostile venue of Manhattan, District Attorney Alvin Bragg hoped to influence the 2024 election. His election interference plot would fail, however if the conviction were to be reversed before November.
In the normal course of New York appellate procedure, the appeal would not be heard until after the election. If Trump were to lose in November and the conviction were to be reversed after that, Trump and his millions of supporters would have a legitimate claim that his electoral defeat was improperly influenced by an impropriety manipulation conviction.
This is why it is so important for the appeals in this case to be expedited and decided before the election. It is possible though not simple to achieve this equitable result. Let me explain how.
An appeal cannot be filed until after sentencing, which is currently scheduled for July 11. Under New York law, a pre-sentence report must be filed before the judge can impose a sentence. But no such report is realistically necessary in this case for two reasons: 1) the judge knows everything he needs to know about this defendant and would get no new relevant information from a report; and 2) Justice Juan Merchan already knows — and has known from the beginning — what sentence he is going to impose.
Merchan is going to impose the harshest possible sentence that he can get away with without being reversed and without it backfiring and helping Trump get elected. Merchan is a biased judge more interested in “getting Trump” than doing justice.
Understanding this reality, Trump’s lawyers should seek to move sentencing up so they can get their appeals filed. This can be done by a motion to expedite sentencing. They should consider bypassing the Manhattan Appellate Division and seeking direct review by the Court of Appeals in Albany, New York’s highest court, where they have a better chance of obtaining a reversal. If they lose there, they can seek expedited review by the U.S. Supreme Court.
All of these remedies are available as a matter of law, but they are discretionary with the courts.
Bragg will almost certainly oppose this schedule, arguing that Trump’s appeal should be slow tracked on the usual schedule, because “no one is above” the usual schedule. But Trump can quote prosecutor Jack Smith who argued that the voting public is entitled to have the cases resolved before the election so that they can consider the result when casting their votes. But resolution of a criminal case does not end in conviction by a trial court: it ends with a completion of the appellate process.
It would be a travesty of justice if voters were to cast their ballots on the basis of this corrupt and unconstitutional conviction, obtained by a partisan prosecutor who set out to get Trump, a biased judge who denied him a fair trial and a Manhattan jury comprised largely of anti-Trump voters. This unlawful conviction cries out for appellate review.
There are so many reversible errors in this case that any first-year law student would win this appeal if the name of the defendant weren’t Trump, and the timing of the trial wasn’t before the election. This does not guarantee an appellate reversal, because appellate judges are also influenced by the political realities. But appellate review, especially outside of Manhattan, assures the defendant and the public of a more objective and less politicized assessment.
We are living in an age of weaponization of the criminal justice system, but even weaponization requires an opportunity to fight back on a level playing field. Thus far Trump has been denied that level playing field in this case, and he and his voters are entitled to the full appellate process before the election.
This will not happen unless the appellate courts acknowledge the unfairness of having deliberately rushed Trump to trial on a schedule designed to achieve a down and dirty conviction while denying him the right to appeal that conviction before the election.
Courts are generally reluctant to acknowledge the political realities surrounding a criminal case, but in this situation prosecutors themselves have acknowledged he need to get jury verdicts before the election. They are not entitled to that partial result. At the very least, the public is entitled to a completion of the criminal process — from indictment to appellate review — before the election.
The appellate courts should recognize this reality and adjust the schedules accordingly in order for justice to be done.
Dershowitz is a professor emeritus at Harvard Law School and author of “War Against the Jews: How to End Hamas Barbarism.”
