How Trump Is Going to Fight His Conviction (2024)

Read our ongoing coverage of Donald Trump’sfirst criminal trialhere.

Donald Trump may have been convicted on Thursday, but there’s a long road ahead before he might face any punishment.

Soon after a Manhattan jury found Trump guilty of 34 felony counts for falsifying business records to hide a hush money payment to adult film actor Stormy Daniels, Trump’s lead defense attorney, Todd Blanche, went on CNN and pledged to challenge the verdict. “I think the timing of this trial was really unfair to President Trump. There’s so much publicity around the witnesses and leading up to the trial.” On Friday, Trump piled on, holding a rambling news conference where he railed against the jurors, judge, and his guilty verdict. “This is a scam. There’s a rigged trial. It shouldn’t have been in that venue. We shouldn’t have had that judge,” Trump said.

Meanwhile, Justice Juan Merchan has scheduled Trump’s sentencing for July 11, but the appeals process could take years to play out in the courts. (And yes, Trump can still run and serve as president.) To understand what might happen next, we asked Glenn Danas, an appellate expert and partner at Clarkson Law Firm, to break down the road ahead. This conversation has been edited and condensed for clarity:

Shirin Ali: Blanche went on CNN and said he would first challenge the jury’s verdict and then file a formal appeal. What does that mean?

Glenn Danas: It’s called a post-conviction briefing, and you can file a motion asking the court to vacate the jury’s award, saying that it was totally unsupported or irrational. Those kinds of motions don’t have a very high chance of succeeding, but they’re typically made to preserve issues for further appeal.

After Trump has been sentenced, his legal team can file a direct appeal to the First Judicial Department of New York’s Appellate Division, and they’ll also have 30 days to do that. And they can bring up all of the issues that they have—either with trial testimony, that it was prejudicial, or with failure to have allowed any evidence that Trump wanted to put on in his defense, or with jury instructions. All that can be raised and has to be raised in their appeal to the First Department.

I should say that the post-verdict briefing is quite likely to push out the deadline to file the appeal. When there’s a post-verdict briefing, if it’s not summarily rejected, the prosecution can respond to it, and the court could set a hearing on it. This would all likely push back both the sentencing and the deadline to file an appeal.

What options does Trump have to file an appeal to the jury’s verdict?

There are a couple of different ways that one can appeal. A direct appeal, which is what Trump will be filing if the post-verdict motions are not successful—which they probably won’t be—will happen after his sentencing. It will have to be limited to issues that are actually in the record and were properly preserved. Generally, if one is going to appeal an evidentiary ruling—that the court either let in something it shouldn’t have or it failed to let in something that it should have, anything along those lines—those rulings had to have been preserved for appeal by a contemporaneous objection. If Trump’s legal team didn’t object to something in a timely way—usually that means orally during a criminal trial and sometimes it can be by written motion—then it’s waived and can’t be appealed. They have to have been in the record, and that’s also the case for legal arguments.

I’m not certain how much was objected to regarding, let’s say, the jury instructions, but that would have to have been objected to at the time to preserve it for appeal. All of those issues have to be in the record to be appealable and are the basis for a potential success before the Appellate Division. The same would apply if Trump is saying Stormy Daniels’ testimony was unfair to him. In order for his defense attorneys to actually use her testimony as grounds for an appeal, Trump’s attorneys had to have objected to her testimony during the trial.

It’s really quite rigorous and part of why being a criminal defense lawyer is difficult. Part of the skill involved is being able to think on one’s feet and make those objections in a timely and accurate way to preserve them for appeal.

Will Trump have to pay a bond or face any type of punishment while his appeal plays out?

In a civil appeal, let’s say you lose a trial and there’s a monetary award against you. One would have to file a bond in order to stay the execution of that judgment—otherwise, while the appeal was pending, the defendant could execute on it and force you to pay whatever it is that you just lost. In the criminal context for Trump, there’s no money damages against him, so the issue will really be whether whatever he’s sentenced to is stayed pending the appeal. I think it’s unlikely that he’s going to get any incarceration time, given he doesn’t have a record and that these were nonviolent crimes. But if he were sentenced to any amount of jail time, he would then have to make a motion to the sentencing court asking to be released on his own recognizance or to be allowed a cash bail option in order to avoid going to jail or prison, pending the appeal.

How long could this appeals process take?

It’s hard to say exactly, but the first layer of the appeal, which is just to the First Department, I would expect to take about a year. If that appeal is unsuccessful, then after about a year, he would have an opportunity to file what’s called a leave application with the New York Court of Appeals, which is confusingly the name of New York’s highest court. The lowest court was where Trump was just convicted and is called the Supreme Court. The middle layer court is called the Appellate Division.

Since the Court of Appeals is the highest court, they don’t take cases as of right—so after Trump’s first layer of appeal, he may not get another appeal. He would have to ask the New York Court of Appeals to allow him to appeal, and if they grant his leave application, only then can he actually file an appellate briefing, saying, “I was denied my constitutional rights under either the New York Constitution or the U.S. Constitution.” He can also say there was some sort of failure to follow criminal procedure. The Court of Appeals would typically decide the leave application after three to five months, and if granted, then the appeal could take probably another year, maybe a little less. And if the Court of Appeals’ decision is adverse to Trump, he could then file a petition for certiorari in the U.S. Supreme Court, and the basis for that would have to be limited to the U.S. Constitution, rather than New York law or the New York Constitution.

If Trump wins the November election, as president, can he overturn a state conviction against him?

I think this would be an issue that constitutional scholars would have different ideas about, whether the pardoning power or the clemency power extends to him. I don’t believe that he would actually be able to vacate the conviction.

If Trump is elected, but in jail, I think it’s more likely that he could allow himself to get out of jail. But I don’t believe that he would be able to vacate the conviction on the basis of him being in jail without the New York governor or the New York Court of Appeals agreeing to it first.

What do you think the likelihood of success is for any Trump appeal of this jury’s verdict?

When there’s any resolution against a criminal defendant, saying, “We’re going to appeal this!”—it’s very common and doesn’t really mean much. In Trump’s case, of course they’re going to say this. It’s really at the first level that there’s a fairly high possibility or relatively high possibility of getting a reversal or a vacatur. After this first layer, when the appeal moves on to the New York Court of Appeals or the United States Supreme Court, the odds are much, much lower.

If I were betting, I would put it at maybe a 40 percent likelihood of succeeding at the next level—which is when the appeal initially goes to the First Department—on at least one of the many bases that they’re going to assert. They’re probably going to have a dozen bases that they’ll figure out for appeal. If that level is unsuccessful, then I think that his odds before the New York Court of Appeals would be probably in the single digits, maybe at 10 percent, at most. And then if it goes to theSupreme Court, in this case, I would put it much lower than that, at probably 1 percent likelihood of success.