Trump Appeals His Convictions in Manhattan Criminal Case

With an embarrassment of riches to choose from, the president’s appellate team raises five claims.

‘T his is the most politically charged prosecution in our Nation’s history.” So begins the forceful brief President Trump has filed in a New York appeals court, challenging his convictions in the business-records fraud prosecution brought by Manhattan District Attorney Alvin Bragg.

It was the only one of the four criminal cases in the failed Democratic lawfare campaign against the then-former president to make it to trial. Because of that, Bragg’s case, facilitated by the erratic, partisan Democratic judge, Juan Merchan, became lawfare’s poster child — rivaled only by the preposterous civil fraud prosecution brought by Bragg’s fellow elected progressive Democrat, New York Attorney General Letitia James, which similarly targeted the Democrats’ archrival on an unprecedented legal theory, helped along by a pliant Democratic judge, Arthur Engoron. The unabashed political bias attendant to the New York cases had to be alarming even to voters who have little regard for Trump. It clearly contributed to his narrow victory in the 2024 election.

With an embarrassment of riches to choose from, the president’s appellate team, led by the formidable Robert Giuffra (of Sullivan and Cromwell in New York City) raises five claims.

First, it contends that Bragg’s attempt to enforce (actually, to concoct his own version of) federal campaign finance law violated congressional statutes, which give the Justice Department and the Federal Election Commission (FEC) exclusive enforcement jurisdiction.

The case involved Trump’s reimbursement in 2017 of his former attorney (and self-described “fixer”) Michael Cohen, who in the weeks prior to the 2016 election paid $130,000 to a pornographic actress known as Stormy Daniels (real name, Stephanie Clifford) to execute a non-disclosure agreement (NDA). Daniels claims to have had a fling with Trump in 2006 and had threatened to go public about it during the campaign. (Trump denies the liaison, not very credibly.) Trump reimbursed Cohen in monthly installments beginning in February 2017 and running through the end of the year — i.e., Trump’s first year as president.

In connection with each installment, Cohen wrote an invoice, Trump or someone else in the Trump organization wrote a check to cover the invoice, and a book entry was made. Bragg factitiously claimed that the book entries were fraudulent because though Trump was paying a lawyer who was still acting as his lawyer, the transaction was the repayment of a debt (the NDA payout) not the payment of legal fees on a continuing retainer.

Misstating business records is a misdemeanor in New York law, with a two-year statute of limitations that lapsed in 2019 — four years before Bragg indicted Trump. But the DA sought to circumvent this inconvenience by charging the transaction as if it were a felony: misstatement of business records in order to conceal a second crime. As Giuffra’s brief elaborates, Bragg was opaque about what the second crime was because he didn’t have jurisdiction to charge (or an actual case on) the second crime he chose — a conspiracy to violate the Federal Election Campaign Act (FECA). Bragg theorized that the NDA payment to Daniels was a campaign expense that should have been disclosed under FECA, and therefore that Trump’s portrayal of it in his records as legal fees was intended to conceal the nondisclosure, defrauding the voters.

This made no legal or factual sense. The NDA was not a campaign expenditure under FECA — something Trump’s expert witness, former FEC commissioner Brad Smith, would have explained to the jury had he not been blocked from testifying by Judge Merchan. As a municipal DA, Bragg had no authority to enforce an arcane area of federal law. The DOJ and FEC, which do have jurisdiction, investigated the matter and determined that there was no criminal or civil case. And even if FECA had applied, Trump would not have had to disclose until the next reporting period, which was not until after the election — meaning the voters would not have been informed anyway.

Piling more abuse on this rickety construct, Bragg not only charged the case as a felony but, rather, 34 felonies. That is, he took one transaction and carved it up so that each piece of paper in each installment was a separate four-year felony — aggregating to a statutory maximum of 136 years’ imprisonment (though it would have been capped at “just” 20 years under New York law).

Trump’s trial team was led by now-Deputy Attorney General Todd Blanche and his former DOJ deputy, Emil Bove, whom the president has appointed to the Third Circuit federal appeals court. Giuffra notes that, when the trial defense team first raised Congress’s prohibition against state enforcement of FECA, Bragg’s prosecutors insisted that the FECA violations were just one aspect of a widespread fraud, and that the state’s charges would survive even if FECA were taken “out of the picture.” Yet, in the end, with Merchan’s indulgence, Giuffra argues that Bragg relied on FECA exclusively.

I will skip to Trump’s third claim on appeal, because it is tightly related to the first and is, to my mind, his strongest argument for why the convictions should be thrown out. In a case in which the state claimed that Trump conspired to promote his federal election by unlawful means, Judge Merchan outrageously instructed the jury that it did not need to make a unanimous finding on what the unlawful means were.

It is a constitutional requirement that the jury reach a unanimous verdict. As a matter of law, moreover, a conspiracy is the meeting of the minds between at least two people on the crime that they were agreeing to commit. As Giuffra explains, Merchan instructed the jurors that they could find Trump guilty even if they disagreed on what crime Trump had supposedly conspired to commit — maybe FECA, maybe tax fraud, or maybe false statements to a bank. (None of those offenses, by the way, was pled in the indictment.) This violated the president’s due process rights — not only to a unanimous verdict but to be fairly apprised of the offense(s) he was accused of committing.

Also germane here is Trump’s fourth claim on appeal: sufficiency of the evidence. The recordkeeping charges in the indictment required proof beyond a reasonable doubt that Trump had an intent to defraud. Fraud is essentially a financial crime, and there was no proof that Trump intended to deprive anyone of money or property. Nevertheless, with Merchan’s blessing, Bragg fell back on claiming that “intent to defraud” could include deceiving election regulators or “the voting public.” Put aside that there was no evidence Trump was even thinking about FECA, much less intending to conceal a FECA crime. Again, (a) Bragg had no jurisdiction to enforce compliance with federal election law, and (b) the voting public was not deceived because Trump would not have been required to disclose pre-election even if FECA had applied.

Now, let me briefly address the two other challenges raised on appeal, which I’ve taken out of order.

The president’s second claim is that Judge Merchan violated the Supreme Court’s immunity decision — Trump v. United States, decided on July 1, 2024, about a month after the trial — by permitting evidence of Trump’s official acts as president. It was reckless of Bragg to offer such evidence, and for Merchan to allow it. Not only did the defense object; it was already obvious at the time of the trial (during which oral argument in the immunity case took place) that the Supreme Court was likely to grant Trump some measure of immunity.

A majority of the justices turned out to be sympathetic to Trump’s claim that presidents have immunity not only from criminal charges based on their official executive acts, but also from the use of those acts as evidence in a criminal trial. Bragg and Merchan knew they were playing with fire allowing such evidence in these circumstances. Though Bragg later claimed, and Merchan naturally agreed, that the introduction of this evidence was, at most, harmless error, Bragg’s prosecutors had argued in summation to the jury that it was “devastating” proof of guilt. Giuffra contends that the state can’t have it both ways.

Finally, Trump’s fifth claim targets Merchan’s failure to recuse himself despite immense grounds for questioning his impartiality — and mind you, New York law calls for disqualification if there are merely reasonable grounds. Merchan made contributions to the 2020 Biden campaign against Trump and a group called “Stop Republicans PAC.” The judge’s apologists stress the small-dollar amounts involved, conveniently ignoring that contributions in any amount violate a state prohibition on political donations by sitting judges. (Paradoxically in this case, Trump’s payments that were not covered by FECA were treated as if they were political expenditures; yet Merchan’s actual political expenditures, which were undeniably partisan political contributions, were treated as if they didn’t happen.) Giuffra further notes that a close relative, Merchan’s daughter, was a Democratic political operative — part owner of an advertising firm that was paid millions of dollars by the Kamala Harris campaign and other Democrats, including, the brief relates, political ads “specifically invoking [Bragg’s] prosecution of President Trump in her father’s courtroom.” (Emphasis in original.)

In the next stage of the appellate process, the District Attorney’s Office will file its responsive brief. Oral argument should occur early next year. There is no timetable for a decision by the appeals court, which is known as the Appellate Division, First Department (to which appeals from cases in Manhattan are funneled).

After the court rules, there could be an appeal to the state’s highest court, the New York Court of Appeals. Subsequently, if pending federal issues remain (e.g., the claims arising out of presidential immunity principles), there could be an appeal to the United States Supreme Court.