Following a New York jury’s conviction of former President Donald Trump on 34 felony counts of falsifying business records, a Yale law professor suggested there’s another strategy the former president’s legal team could pursue to limit the impact of Manhattan District Attorney Alvin Bragg’s case on the 2024 presidential election.
The newly created podcast ” Straight down the middleYale Law Professor Jed Rubenfeld discussed the legal options open to Trump’s defense team in the wake of the jury’s verdict and the appeals process that is expected to begin soon.
The most obvious path for Trump’s legal team to challenge the conviction would be to appeal through the New York Court of Appeals and ultimately to the Supreme Court, a process that Rubenfeld argued could take years to complete and cause “irreparable harm.”
“Of course, that will take years, and that’s a problem. Why is it a problem? It’s a problem because the election has already taken place, and if this conviction is illegal and unconstitutional, it could have an effect on the election,” Rubenfeld, the constitutional law professor, said on the podcast.
Rubenfeld pointed to surveys that found a “significant number” of voters said they would vote for Trump in the next presidential election even if he was convicted, and said: “If that is true, an unlawful conviction in this case could interfere with and actually determine the outcome of the next US presidential election.”
“Even if a conviction is overturned on appeal years later, the impact can’t be undone. In legal terms, that’s called irreparable harm,” Rubenfeld said.
Rubenfeld suggested that if the convictions were overturned on appeal, Bragg and Judge Juan Marchan would have “illegally interfered in an election and determined the outcome of an upcoming election through unconstitutional means.”
“And years of appeals are not going to affect that,” he added.
Despite media reports, Rubenfeld argued that it’s “not true” that Trump is already a “convicted felon,” and that “a jury verdict does not make him a convicted felon.”
“There is no conviction until a judge rules that a person is guilty. Right now, in New York, it is highly likely that Judge Marchan will convict Trump on the day that he rules, which will be July 11th.”
Rubenfeld argued that “another avenue” Trump’s lawyers could take to fight a conviction is to file a lawsuit in federal court “seeking an emergency temporary restraining order.”
Explaining what that effort would look like, Rubenfeld said, “In this federal lawsuit, Trump will sue District Attorney Bragg and other state officials, and will ask a federal judge for an emergency temporary injunction to stop Judge Marchan from entering a conviction until a federal court has had an opportunity to consider and preclude the significant constitutional arguments in this case.”
Rubenfeld expressed concern that criminally targeting a former president for an “unspecified” crime was “a bad look for our country” and shared his own thoughts on the problems with the case against Trump.
“Criminalizing a former president of the United States and someone currently running for president is a very bad look for our country,” he said.
“It looks especially bad when the people bringing the cases and the judge who will sentence them are members of opposing political parties. And it looks even worse when the crimes are so unclear that the state conceals the actual charges until the very end of the trial and indeed during the trial.”
“To this day, we don’t know exactly what the jury found Trump guilty of,” Rubenfeld added.
Rubenfeld said anyone who would criminally target a member of the opposing party – in this case, Trump, “the leading candidate in the polls” – “must have that weapon.”
“It’s better not to pursue new legal theories that force you to hide the ball. [and] “It’s not even clear what the charges are,” he said.
“This could set a very dangerous precedent for this country. A very bad, dangerous precedent.”
“That’s why it’s so important that a federal court reviews the constitutionality of this prosecution and determines whether it is constitutional or not,” he added.
“The only way to achieve that before the election is for the Trump campaign to file a lawsuit in federal court, asking the federal court to temporarily postpone sentencing until the federal court, and perhaps the Supreme Court itself, can urgently rule on the likelihood that these constitutional arguments will succeed.”
If that doesn’t happen, “there is a real risk of the ‘irreparable harm’ I mentioned earlier,” Rubenfeld said.
“But if that were to happen, we could see a ruling from a federal court, or even the U.S. Supreme Court, before the election is held,” he said.
“Maybe that’s what the state needs and what the laws of this country require.”
At a trial in Manhattan last week, Trump was found guilty by a jury on all 34 counts of falsifying business records related to the payment of hush money to adult film actress Stormy Daniels ahead of the 2016 presidential election.
Trump is scheduled to be sentenced on July 11, potentially sending him to prison just days before the Republican National Convention in Milwaukee, Wisconsin.
