Stanford’s Robert Weisberg on the Trump Conviction in Hush-Money Case

Trump's Unprecedented Legal Challenges

On May 30, former president Donald Trump was found guilty by a jury in New York and convicted on 34 felony counts of falsifying business records related to payments made to Stormy Daniels, who he allegedly had an affair with. The payments were made on October 27—just days before the 2016 presidential election. Manhattan District Attorney Alvin Bragg tied the payments to the election timing, alleging they were made to further and conceal a conspiracy to defraud voters in New York, thus elevating it to felony charges. Here, Stanford criminal law expert Robert Weisberg discusses the conviction, possible appeal, timeline, and more.

Are you surprised by the verdict? And that Trump was found guilty on all 34 counts?

Maybe I’m a little surprised that in effect the jury was so utterly unconvinced by the arguments that the very experienced Todd Blanche was making. But to express surprise is to suggest that I made a somewhat confident prediction of a different outcome. I’m not sure anyone could’ve made a confident prediction of any outcome in this case because of its unique context. So, I guess no outcome should surprise anyone. Maybe a sound prediction would have been something like a hung jury, but only because that would average out a wide range of possible outcomes.

As for it being all 34 counts, they were just 34 acts of doing pretty much the same thing in 34 different financial entries, so maybe “all or none” is not a surprise.

Do you think the prosecution’s case was solid—and might withstand an appeal? Do you see weaknesses in the prosecution that might come out on appeal?

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Stanford Law Professor Robert Weisberg

Of course, there will be a vigorous appeal of the three key grounds that have been mentioned. The weakest will be that the judge was so biased that he should’ve recused himself.

Slightly less weak: The Stormy Daniels testimony was full of salacious facts that were irrelevant to the case and prejudiced the jury. Blanche did object and asked for a mistrial, but the judge was satisfied that granting a few objections on some points prevented prejudice, and that in any event, the defense opened up the issue by trying to persuade the jury that Daniels’s story was false. Ironically the recent Harvey Weinstein ruling by the New York Court Appeals shows that that court is willing to overturn a verdict on a tough judgment call on prejudicial evidence. Trump’s case will be weaker.

The strongest argument is the technical one about unanimity. The jury was told it had to find that the falsification of the business records was intended to achieve an illegal goal, and it was presented with several illegal goals that would qualify including violation of federal election laws and violations of tax laws. And jurors were told that so long as they all agreed that the falsification was done for one of these purposes, they didn’t have to all agree on which one. On appeal Trump will argue that this violates the requirement of the unanimous jury or that the charge was illegally vague. But New York law clearly permits this instruction. So Trump may have the challenge of arguing that the NY law itself is unconstitutional.

What kind of sentence does this carry?

Each account is an E felony under New York law. The sentence can be just fines or probation or prison for up to 4 years. It’s up to the judge. For sure, if it’s prison, the 34 counts will be bunched into concurrent sentences.

What’s the timeline for an appeal? I understand sentencing will take place on July 11.

ln a normal case it would be months before the appeal would even begin in the intermediate appellate court in New York, and some unpredictable number of months before a decision. Even then the losing side would appeal up to the Court of Appeals—the top court, so many months or maybe we start talking about years.  No way of knowing whether this will somehow get expedited.

We’ve hearing of accusations of bias. Did you think it was a fair trial?

Despite all the noise, there wasn’t anything demonstrably unfair. The jury was selected in a pretty conventional way, and the judge’s rulings were well within the conventional bounds of judicial decision making. The strongest argument of bias would be that Bragg would never have brought this case against a less famous or less controversial figure, nor would he have invested such great resources for any other defendant. That may be true, but the so-called claim of selective prosecution here is really more of a political argument than a legal one.

Does a federal conviction prevent Trump from holding public office?

This is a state conviction but nothing in the Constitution bars either a state or federal felon from running or serving.

Robert Weisberg works primarily in the field of criminal justice, writing and teaching in the areas of criminal law, criminal procedure, white collar crime, and sentencing policy. He also founded and now serves as faculty co-director of the Stanford Criminal Justice Center (SCJC), which promotes and coordinates research and public policy programs on criminal law and the criminal justice system, including institutional examination of the police and correctional systems.  He is the Edwin E. Huddleson, Jr. Professor of Law.