The conviction of former President Trump in the so-called hush-money trial has inevitably led to a lot of speculation concerning whether he will be sentenced to prison. A number of legal experts have suggested that it is unlikely. Normally this would be a reasonable prediction. Trump is, after all, a first-time offender charged with a non-violent crime. Unfortunately, there was nothing normal about this trial. The “felonies” for which Trump was convicted were concocted by Manhattan District Attorney Alvin Bragg based on a legal theory that had never been used in any court. As to presiding judge Juan Merchan, he is a political partisan bristling with conflicts of interest.
This is why Donald Trump loses an occasional battle, but will eventually win the war. He believes in America.
None of this matters to Bragg or Merchan. Their common goal was to “get Trump” rather than dispense justice. But in their fervor to assure a conviction they committed so many legal blunders that the verdict is all but guaranteed to be reversed on appeal. At least two of these mistakes involve brazen violations of explicit due process protections enshrined in the Constitution. Judge Merchan trampled on Trump’s First Amendment rights by imposing a gag order on him and refusing to lift it even after the trial. Another egregious violation involves Trump’s Sixth Amendment right to know the precise nature of the charges for which he was being prosecuted. As legal scholar Jonathan Turley explains in The Hill:
When the verdict came in, we were still unsure what Trump was convicted of … The Supreme Court has repeatedly emphasized that the requirement of unanimity in criminal convictions is sacrosanct in our system. While there was unanimity that the business records were falsified [a misdemeanor charge] to hide or further a second [felony] crime, there was no express finding of what that crime may have been. In some ways, Trump may have been fortunate by Merchan’s cavalier approach.
Trump may not consider himself fortunate, however, if his conviction is reversed after it costs him the election. And it’s likely that Judge Merchan will sentence him to prison if he believes it will ruin Trump’s chances of winning. Indeed, he threatened to throw Trump in jail during the trial for ignoring his constitutionally dubious gag order. This is why House Speaker Mike Johnson has urged the U.S. Supreme Court to intervene. During a Friday appearance on Fox and Friends the Speaker said, “I do believe the Supreme Court should step in. Obviously, this is totally unprecedented, and it’s dangerous to our system … This will be overturned, guys. There’s no question about it. It’s just going to take some time to do it.”
That’s the problem, of course. The New York Appellate Division is dominated by Democrats who will almost certainly slow walk Trump’s appeal. The only remedy is for Trump’s legal team to convince the Supreme Court to grant an emergency appeal based on Judge Merchan’s multiple violations of his due process rights. This won’t be easy. Only four justices must vote to grant cert for SCOTUS to hear the case, but they are already under attack by the Democrats, and the specter of Bush v. Gore looms ominously. Still, at least one noted legal scholar has suggested a possible fast track to the high court. Harvard Law School professor emeritus Alan Dershowitz proposed the following during Megyn Kelly’s Friday podcast:
They should skip the Appellate Division, go to the New York Court of Appeals [the highest appeals court in the Empire State], and ask for an expedited appeal. In the meantime, prepare for an expedited appeal in the United States Supreme Court and say that this was a rush to try to get this case, a verdict of conviction before election, and the Supreme Court of the United States has an obligation to review this case before the election so that the American public knows whether or not Donald Trump is guilty or not guilty of these made up crimes … This is a winnable appeal.
This analysis, it should be remembered, was offered by a lifelong Democrat who voted against Trump twice. Nor was he the only liberal legal expert to criticize New York State Judge Merchan’s conduct of the trial. ABC’s chief legal analyst, Dan Abrams, raised the Sixth Amendment issue on This Week with George Stephanopoulos: “There’s some real appellate issues here that are serious questions … why didn’t the defense even know what the charge was that they were gonna be applying — what law?” Abrams also suggested that Alvin Bragg would never have brought this unprecedented case against anyone not named Donald Trump: “I don’t think that, based on this fact pattern, anyone else would have been charged here.”
Nonetheless, his name is Donald Trump and they convinced twelve Manhattan TDS victims that he committed some crime or other. All of which brings us back to this question: Is Judge Merchan dumb enough to imprison the Bad Orange Man? Sunday morning, Trump did an interview with Rachel Campos-Duffy, Pete Hegseth, and Will Cain of Fox News. Eventually, he was asked about the possibility that the Judge might jail him. Trump answered, “I’m OK with it.” Later, he added, “I’m not sure the public would stand for it … You know at a certain point, there’s a breaking point.” But Trump wasn’t talking about violence. He was referring to the uniquely American sense of fairness that ultimately defines us as a nation.
This is why Donald Trump loses an occasional battle, but will eventually win the war. He believes in America. His Lilliputian opponents don’t even know what it is.
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