By Luc Cohen
NEW YORK (Reuters) – Donald Trump’s near-certain appeal of his historic conviction on criminal charges in New York is likely to focus on porn star Stormy Daniels’ salacious testimony about her alleged sexual encounter with the former U.S. president as well as the novel legal theory prosecutors used in the case, but he faces long odds, legal experts said.
It is unlikely any appeal would be resolved before the Nov. 5 election, in which Trump, the Republican presidential candidate, is set to square off against Democratic President Joe Biden.
Twelve jurors found Trump guilty of fudging records to cover up his former lawyer Michael Cohen’s $130,000 payment to Daniels for her silence before the 2016 election about the alleged 2006 encounter.
To prevail on appeal, Trump, 77, must demonstrate that Justice Juan Merchan made significant errors in overseeing the trial.
Trump pleaded not guilty and denies having had sex with Daniels, whose given name is Stephanie Clifford. He argues the Manhattan District Attorney’s office, led by Democrat Alvin Bragg, brought the charges to derail his presidential campaign.
On appeal, Trump’s lawyers will likely argue that Daniels’ testimony about their encounter in a Lake Tahoe hotel room went into too much detail for a case that hinged on whether Trump falsified documents rather than on whether he had sex with Daniels.
On May 7, Daniels testified that she hit Trump’s backside with a rolled-up magazine, that he did not use a condom, and even mentioned the position she said they were in. She said she “blacked out” and did not remember how her clothes came off, though she said she did not consume alcohol or drugs and never said “no” to Trump during the encounter.
“They’re going to claim that the testimony of Stormy Daniels was too salacious, outside the bounds, prejudiced the jury,” said George Grasso, a retired New York state judge who attended the trial.
Defense lawyer Todd Blanche twice asked Merchan to declare a mistrial based on her testimony, calling it outside the jury’s presence a “dog whistle for rape.”
“How can we come back from this in a way that’s fair to President Trump?” Blanche said on May 7.
The judge denied both requests, in part because Blanche said in his April 22 opening statement that Daniels’ account of the encounter was false. Merchan said that meant prosecutors were entitled to elicit testimony to establish her credibility.
Merchan acknowledged some of the prosecutors’ questions solicited unnecessary details and noted that he sustained many of the defense’s objections – meaning jurors could not consider some of Daniels’ responses.
But he chided the defense for not objecting to more questions, including the one about whether Trump wore a condom. Failing to lodge an objection during the trial could make it harder for the defense to argue on appeal that Merchan erred in allowing the testimony.
“There were some things that would probably have been better left unsaid,” the judge said on May 7. “I was surprised that there were not more objections.”
Rebecca Roiphe, a professor at New York Law School, said none of Merchan’s decisions stood out as obvious mistakes, lessening Trump’s lawyers’ chances of getting the conviction overturned.
“I can’t imagine an appeals court would say the newspaper spanking warrants a reversal,” said Roiphe, a former prosecutor with the Manhattan District Attorney’s office.
NOVEL THEORY
Besides Daniels’ testimony, the defense could argue on appeal that Merchan had a conflict of interest because of his daughter’s work for a political consulting firm with Democratic clients, that a gag order restricting Trump’s public statements about witnesses violated his rights, and that it was unfair to hold the trial in heavily Democratic Manhattan.
Trump’s lawyers previously raised those issues in a flurry of unsuccessful last-minute bids to delay the case before the trial started on April 15.
The defense is also likely to argue the charges themselves were legally improper. Some legal experts have argued that the case could be vulnerable to such a challenge because the prosecution’s legal theory has not been tested on appeal.
Falsifying business records on its own is a misdemeanor in New York, but it is elevated to a felony if done to further or conceal another crime.
In this case, prosecutors say Trump was seeking to cover up a conspiracy he and Cohen were involved in to promote a candidacy for public office through unlawful means, a misdemeanor in New York state. They say the hush money payment to Daniels was effectively a campaign contribution that exceeded the $2,700 limit on political donations in 2016.
Cohen pleaded guilty in 2018 to violating federal campaign finance law with the Daniels payment and went to prison. Trump was not charged in federal court.
In urging Merchan to dismiss the case last year, Trump’s lawyers argued that New York state law did not apply to federal elections.
Bragg’s office argued the state law applies to federal elections, but Boston University law professor Jed Shugerman said the law was ambiguous on that point, potentially posing an issue on appeal.
Merchan allowed the case to go forward, writing that New York state election law clearly applied to federal elections. Grasso said the defense would be unlikely to succeed in a challenge to that decision.
“If there’s a guilty verdict, they’ll try to appeal everything,” Grasso said, but added he thought the judge’s decision was very sound.
(Reporting by Luc Cohen in New York; Editing by Noeleen Walder and Howard Goller)
