Legal scholars 'brace' for 'Hail Mary pass' that could send Trump conviction to SCOTUS

11 June 2024

After a Manhattan jury found President Donald Trump guilty on 34 criminal counts in District Attorney Alvin Bragg Jr.'s hush money/falsified business records case, House Speaker Mike Johnson (R-Louisiana) called for the U.S. Supreme Court to "step in" and intervene on Trump's behalf.

Many legal experts have been attacking Johnson's comments as absurd, emphasizing that the High Court doesn't intervene in state prosecutions. Bragg prosecuted Trump for New York State, not the federal government and the U.S. Department of Justice (DOJ).

But the Daily Beast's Jose Pagliery, in an article published on June 11, offers some reasons why the High Court might get involved in the case as Trump's MAGA allies are hoping.

"What matters is whether Trump's defense team, led by attorney Todd Blanche, tries something of a Hail Mary pass: claiming Trump's treatment in New York somehow violated his Fifth Amendment right to a fair trial," Pagliery explains. "Legal scholars are bracing for Trump's lawyers to make that argument in an attempt to gauge the interest of the conservatives on the U.S. Supreme Court, who outnumber the liberals 6-to-3. Experts awaiting Trump's promised appeal of the sentence (that Justice Juan) Merchan is expected to deliver on July 11 are keeping a lookout for the telltale sign: any mention of federal civil rights."

Jill Konviser, a retired criminal court judge in New York, is confident that Trump received a fair trial. But she doesn't think that it is out of the question the High Court will take the case anyway.

Konviser told the Daily Beast, "Presumably, when drafting the appeal, the defendant will sprinkle any possible federal constitutional issues in his papers hoping to pique the interest of the Supreme Court. While it is difficult to see a federal constitutional claim here, the Supreme Court is just that: supreme. And so, if they say there's a federal question, well then, I guess there is."

The retired judge added, "Their discretion is broad, and they have the last word. Appeals courts are right because they are last, not necessarily last because they are right."

Alan David Marrus, a former judge in New York State, stresses that a "due process" argument would be key if Trump's legal team tried to appeal his conviction to the U.S. Supreme Court.

Marrus told the Beast, "If I were the lawyers who were representing Trump — and no one has asked me to do that — I'd be sure to write in my briefs to the appellate division that some constitutional right like due process was violated. If they don't argue this in state court, they'll never get this into federal court…. A lot of commentators have said, the case Trump was tried on, no one's been prosecuted for a crime like that before."

Marrus continued, "That's the argument his lawyers will be sending: In the history of New York jurisprudence, nobody has been prosecuted for a felony based on an election law violation where the intent was to violate the right of the people to decide an election, perpetrating a fraud on the electorate."

Read Jose Pagliery's full report for the Daily Beast at this link (subscription required).

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