Former President Donald Trump has three key issues he can argue on appeal to overturn his conviction in his New York hush money trial, including that prosecutors never identified an underlying felony to the resurrected misdemeanor bookkeeping charges that had lapsed.
The other two issues for appeal involve boundless character testimony prejudicial to Mr. Trump and prejudicial evidence that the trial judge allowed to be admitted, such as testimony about the infamous “Access Hollywood” tape.
Legal scholars say a defendant’s right to a fair trial and due process is undermined when the specific charge they are facing is not spelled out for them to defend properly.
That was what happened, some experts argue, when Judge Juan Merchan directed jurors that they didn’t need to — under New York law — find the defendant unanimously guilty of committing a felony to resurrect the misdemeanor recordkeeping charges that had expired under the statute of limitations.
The judge instructed jurors that they would have to find only that Mr. Trump committed bookkeeping infractions to conceal a campaign finance violation, tax law infraction or falsification of business records. They didn’t have to agree on the underlying crime to find the former president guilty.
“The issue of the absence of a second crime is exactly the kind of legal question that would be prime for appellate review,” said John Yoo, a professor at the University of California, Berkeley, and a former Justice Department official.
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Thomas Hogan, a professor at South Texas College of Law Houston, said an appeals court would be suspect of such instructions.
“The fact that the prosecution has not been forced to identify specifically the underlying crime that would make this business records case a felony — and the jurors apparently are each permitted to choose their own underlying crime, with no unanimity required — certainly would get a skeptical look from an appellate court,” he said.
The conviction of Mr. Trump is historic — the first time a former president has faced criminal charges that have gone to trial. He was found guilty of all 34 counts.
Prosecutors said Mr. Trump used personal attorney Michael Cohen to pay $130,000 to adult film actress Stormy Daniels before the 2016 presidential election because she was shopping a story about an alleged sexual encounter with Mr. Trump in Lake Tahoe in 2006.
Legal scholars say Ms. Daniels’ detailed testimony about the alleged tryst could be viewed as prejudicial because it was unrelated to the business recordkeeping charge at issue in the trial.
Her testimony about how they had sex, the use of a condom, that she was bored and that Mr. Trump allegedly said she looked like his daughter was inflammatory, some analysts say.
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Other testimony included an alleged affair involving former Playboy model Karen McDougal. Mr. Trump has denied both affairs.
“The amount of character evidence admitted on unrelated matters is a fundamental problem for appellate courts,” Mr. Hogan said.
Brian Claypool, a trial lawyer in California, said admitting into evidence testimony about the “Access Hollywood” tape, in which Mr. Trump discusses grabbing women’s body parts without consent, was unrelated to the charges and prejudicial to the defendant.
“This tape had nothing to do with falsifying documents. This was not a sexual assault trial,” he said. “This tape is also highly prejudicial to Trump casting in a light of being a ‘womanizer’ and disrespecting women. Five jurors are women and could easily be offended by this tape, which may cloud their ability to be fair and impartial.”
• Tom Howell Jr. contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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