Former President Donald Trump can only appeal his Manhattan felony conviction in New York state court, legal experts say, but he could turn to the U.S. Supreme Court to intervene on federal questions — including whether federal election law violations could be the basis for prosecution in state courts.
The Manhattan jury convicted Trump Thursday of all 34 felony counts of falsification of business records. Prosecutors alleged that Trump disguised $130,000 in hush money as a legal expense as part of a scheme to keep information about alleged extramarital sex from voters and unlawfully influence the 2016 presidential election.
On Friday, Trump vowed to appeal: "So we're going to be appealing this scam. We're going to appeal it on many different things - he wouldn't allow us to have witnesses, he wouldn't allow us to talk, he wouldn't allow us to do anything. The judge was a tyrant."
On Friday, House Speaker Mike Johnson, R-La., said on "Fox and Friends" that the "Supreme Court should step in" on any potential Trump appeal.
"I think that the justices on the court, I know many of them personally, I think they're deeply concerned about that as we are," Johnson said. "So I think they'll set this straight but it's going to take awhile."
Richard Hasen, an election law professor at UCLA, said that state courts in New York would first handle any state law questions. Trump's case would work up through the next two levels of the New York court system, with the state Court of Appeals being the highest court.
At the Supreme Court, Trump could pose questions of constitutional rights and federal election law.
"Trump could raise various issues related to due process, such as the fairness of the proceedings, bias of the judge, et cetera," Hasen told Salon. "More likely, he would argue that the New York election law that he was prosecuted under to turn the false business records misdemeanors into felonies improperly relied upon alleged federal election law violations."
Trump was convicted of felony falsification of records — which prosecutors could raise from a felony to misdemeanor after proving an "intent to defraud."
The jury instructions said: "Under our law, a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: makes or causes a false entry in the business records of an enterprise."
Prosecutors alleged that Trump intended to commit, aid or conceal a violation of state election law section 17-152.
That statute "provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election."
Judge Juan Merchan said jurors could consider three unlawful means under New York's election law conspiracy statute: a violation of the Federal Election Campaign Act, falsification of other business records or violation of tax laws.
Bragg's office has provided data that it says shows the office's falsification of business records charges are common — but several legal experts say the prosecution of Trump raises unsettled questions.
"It is not clear if the federal election law violations could be the basis for prosecution in state court," Hasen said. "There is also an argument that Trump did not violate federal election law, for example, if his payments were personal and not campaign related."
Richard Pildes, law professor at New York University School of Law and an expert on constitutional law, said including the FECA violation as an "unlawful means" provided a federal question for Trump to bring to the Supreme Court.
"If the Trump team wants to argue that his actions do not amount to a violation of that federal law, the Supreme Court would have the power to decide on the proper meaning of FECA," Pildes told Salon. "Because it’s a federal law, the Supreme Court has the power to resolve the proper interpretation of that law."
Samuel Issacharoff, a fellow professor of constitutional law at New York University, said the Manhattan prosecutors' decision to raise misdemeanor falsification of business record charges to felonies raises several potential questions.
"First, was this a proper application of those laws?" he told Salon. "And second, are these laws that can be enforced by the states, or is there exclusively federal authority to enforce these laws?"
Issacharoff said at the state law level, there's a question about raising charges to a felony level to get around the statute of limitations.
He said there's also the question of whether Trump's conduct is actionable under the federal elections law.
"The only well known example is the attempt to prosecute John Edwards for a failure to disclose private matters, payments of this sort, and it ended in acquittal, so it was never reviewed on appeal," he said.
Issacharoff said the question of the Trump trial jurors being instructed to weigh whether he violated federal election law is a "subtle" area of law.
"The question is, can a state court jury be so instructed on a matter of federal law, that's an open question that I have to be quite honest, I've never seen that come up this way," he said.
Early on in the Manhattan proceedings, Trump tried to move the case to the federal court — but that request was denied.
"So now he has an adverse judgment in state court, and his only path is to exhaust his state court appeals, so he can go up the appellate chain of state courts," Issacharoff said.
Clara Torres-Spelliscy, a Stetson Law professor and author of "Corporatocracy," said that the Supreme Court typically does not review courts' decisions interpreting state law.
But there are exceptions, such as Bush v. Gore.
In December 2000, the Florida State Supreme Court In that December 2000 opinion, the Supreme Court ordered to stop the recount of votes in Florida's 2000 presidential election.
George W. Bush and Dick Cheney filed an emergency application to stay that mandate, and the state Supreme Court granted that stay and ended up stopping the recount.
"If the Trump lawyers can articulate a constitutional harm, then they might get the Supreme Court to review the case," she told Salon. "This is less likely as it involves actions that primarily happened when Trump was a private citizen and involved his business. Ultimately the Supreme Court has the power to duck hearing this case like they ducked all of the post-2020 election litigation in 2020/2021."
Boston University School of Law professor Jed Shugerman said he expects the state courts to review New York state's election law conspiracy statute in Trump's likely state-level appeal.
He said the state court could look at statutory language that says the state law protects voters in all elections, local, state and federal. But he said the court could also scrutinize statutory language defining public officers as being state or local.
Shugerman said there is little case law on New York's election conspiracy statute — meaning it's unclear how the state appellate courts will weigh in at the end of the day.
"For anyone who says this is clear, that's just based upon their reading of the statute," Shugerman said.
He said other issues Trump could raise and courts could examine include whether the "judge was clear enough about what a Federal Election Campaign Act violation was, and what constituted tax fraud."
The defense decided not to call their campaign finance expert as a witness after Merchan reaffirmed a pretrial ruling that would prevent the expert from interpreting election law. The judge did so because rules prevent expert witnesses from interpreting the law.
"To me, there is a question of whether the judge, with such a complicated statute, gave the jury sufficient guidance," Shugerman said.
Shugerman said Trump could argue their witness would have been relevant.
Overall, Shugerman said he's concerned that the FECA's preemption law makes clear that it supersedes any state election law.
"There's never been a state prosecutor that has relied on the Federal Election Campaign Act before in the prosecution," he said. "So there's this bigger question: was it appropriate in a case of this political significance, with these questions about whether there was a political bias here, was this the appropriate time to be trying out all these untested and unprecedented uses of state and federal law? And the point is that not only are they unprecedented, but there are good reasons why prosecutors might lose those questions."
When asked whether state election agencies have any authority over how federal candidates run in their states, Shugerman said he would avoid weighing in on that specific issue.
"I'm just saying there is no precedent," he said. "So this is untested."
Trump's sentencing is set for July 11 — the same week as the Republican National Convention, when he's set to accept his party's nomination for president.
Robert Peck, president of the D.C. law firm Center for Constitutional Litigation, said after sentencing, Trump has 30 days to file a notice of appeal and then "six months to actually file their full fledged appeal."
"They can easily wait until after the election to pursue that," Peck said.
Peck said he doesn't think Trump would see success in raising questions about venue and his due process rights to the Supreme Court.
"My guess is that if they were to try to formulate an issue of federal constitutional dimension, they would claim that it was impossible for that end to get a fair trial in New York City," Peck said. "But that also runs up against the idea that if you think that you want to escape a conviction and commit a crime, you go to a city where you think you cannot get a fair trial, and that way you can never be prosecuted there."
Trump has called the judge biased and falsely claimed that Merchan’s daughter, Loren Merchan, used an image of him behind bars as a profile picture on X. But a court spokesperson said that X account had not belonged to Merchan since she deleted her handle a year earlier.
Trump has also called his gag orders unconstitutional, and complained Friday about being fined $9,000 for his comments talking about jurors and referencing witnesses' participation in the trial. The gag order also restricted him from talking about family members of court staff, including Merchan's daughter.
"Of course, there is an obligation to protect witnesses and others involved in the criminal justice process, and so it makes sense for the judge to give what is really a very limited gag order," Peck said.
Peck doesn't think that any future Trump appeal over his gag orders or allegations of bias would go far.
"This was a very carefully done trial," he said.
Still, he added: "He's had a lot of success in getting cases that you would think might not reach the Supreme Court."
