Erica Hashimoto, who directs the Georgetown Law Appellate Litigation Program, said Trump’s appellate lawyers could challenge the three “unlawful means” that the jury was told to consider. These three are violations of the Federal Election Campaign Act, which limits corporations’ direct contributions to candidates; the falsification of other business records; and violation of tax laws.
The jury did not have to agree on which of the three Trump employed to convict the former president.
“And so if [Trump’s attorneys] can knock out even one of those [on appeal], then I think the whole thing has to go back for a new trial,” Hashimoto said.She added that the New York Election Law has been “very rarely used” and courts have not had many opportunities to interpret it.
“There’s not a lot of case law out there on this election interference New York state law,” Hashimoto said. “And so I think that there are legal arguments surrounding that.”…
Eric Gibson, principal and chair at Post & Schell, said the prosecution’s theory is strong on that front.
The government would likely argue on appeal that the New York Legislature intended for the law against falsifying business records to be read broadly, allowing FECA violations to be considered “another crime,” he said.
“Why would the legislature limit themselves unnecessarily?” Gibson said.
“Why would it be okay for a defendant to falsify records he’s required to maintain for his New York businesses in New York [in order] to cover up criminal activity if the crime is a federal offense?,” Gibson said. “But if the same defendant does the exact same thing to cover up a New York crime, he’s held accountable? That can’t be what they intended.”
Any appeal would almost certainly not be resolved until after the November presidential election.
Richard Schoenstein, vice chair of Tarter, Krinsky & Drogin’s litigation practice, said the prosecution’s merger of state and federal statutes to turn the misdemeanor into a felony is “the most interesting legal point.” But Schoenstein does not necessarily see success in challenging it on appeal.
“I think the odds are against getting the conviction reversed,” he said. “But there are genuine issues.”