As President Donald Trump awaits his sentencing after being found guilty of falsifying business records, he's vowed to appeal his conviction, even if that means going to the U.S. Supreme Court.
On Friday's episode of Alabama Public Television's "Capitol Journal," Alabama Attorney General Steve Marshall explained how that process could play out and on what grounds the Trump team will likely appeal.
"I think the critical question was going to be how did the judge instruct the jury," Marshall said.
"The charge itself was falsifying business records with the fraudulent intent to conceal another crime. Always, the question has been, what is that other crime? Was it a federal elections crime, which we know the FEC refused to pursue? Was it going to be some state-related election offense or, as it sort of popped up at the end, was it some type of tax crime?"
Marshall said determining the underlying crime was critical since it was the basis for Manhattan District Attorney Alvin Bragg's novel legal theory of pursuing a felony charge on what would have otherwise been a misdemeanor passed its statute of limitations.
Instead of having the jurors determine which exact crime Trump allegedly committed, Judge Juan Merchan left it open-ended.
Marshall said, "What we saw the judge do was to be able to instruct the jury that they didn't have to agree on what the crime was, didn't instruct them on what even the specific crime that President Trump could have been concealing, but really left it very open-ended, which I think is hugely problematic for purposes of appeal and this conviction being sustained. But when we saw the court go that direction … it really seemed like that dictated what the outcome was ultimately going to be."
Marshall said Trump will be able to officially start the appeals process following his sentencing hearing on July 11, which is four days before the Republican National Convention.
"I'm sure there will be a motion for a new trial that will be filed that will occur before the appeal takes place," Marshall said. "They'll set out the grounds to give the trial court another opportunity to be able to weigh in before the appellate court does… I still think there is also a federal nexus as well, if it got this far — and it never should, by the way, in my opinion — but it could potentially go to the United States Supreme Court around a very specific issue about what the jury had to find … what the jury had to specifically find as a matter of fact and law before it would've ultimately been applied to the verdict that he was found guilty of this week."
Marshall doubted Trump would receive a jail sentence given New York's track record for nonviolent offenders and one of the prosecutor's star witnesses confessing to committing a much more serious crime on the stand.
"I think it's highly unlikely if you see how New York approaches nonviolent offenders. One of the things I think is a unique irony in this case that doesn't need to get lost is that Michael Cohen on the witness stand admitted to a crime of a much more serious offense under New York law than the one for which President Trump was convicted," Marshall said, referring to Trump's former lawyer Cohen admitted to stealing nearly $60,000 from Trump. "...How can a judge do something very harsh to President Trump when the accomplice under the prosecution's theory admits to committing not only a crime that President Trump was convicted of but also something more serious for which he will face no prosecution and suffer no jailtime?"
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