Trump wins a new, quicker path to SCOTUS overturning his felony conviction
Former President Donald Trump now has a clearer path to overturning his felony conviction.
Late Thursday morning, former President Donald Trump lost his last state-level appeal of his hush-money gag order. He remains barred from attacking the staff and family members of the trial judge and the Manhattan district attorney until after a newly delayed sentencing date of November 26.
Hours later, a federal appellate court delivered a second defeat, denying Trump’s bid to stay the hush-money case, meaning put it on hold, while he seeks to move it from state court to federal court.
These two legal losses now leave the door open for Trump to run to the US Supreme Court, according to Michel Paradis, a constitutional-law expert.
There, Trump can ask the court to overturn not only these two decisions but also the case itself, Paradis, a professor at Columbia Law School, said.
The entirety of the New York Court of Appeals’ dismissal of Trump’s gag-order appeal.
Both losses are eligible under a federal statute for Trump to seek a Supreme Court review, also known as petitioning for “certiorari,” or “cert” for short.
In cases where average citizens are concerned, petitioning for cert is a process with strict guardrails. A quartet of justices would look only at the lower-court decisions immediately at hand — in Trump’s case, these back-to-back blows upholding the gag and rejecting the stay — in deciding what gets on the docket of the term starting October 7.
“Ordinarily, the Supreme Court will only agree to hear questions that were decided by a lower court. Its mantra in this regard is that: ‘We are a court of re-view, not first view,'” Paradis said.
But nothing prevents Trump from trying to shoehorn into his cert petition the larger issue of the constitutionality of the hush-money prosecution as a whole, the professor said.
And because Trump is Trump — and because “the Supreme Court can basically do whatever it wants” — the former president will likely dream big, Paradis said.
He will try to ask that, while it’s at it, the court also examine his conviction and even the indictment itself on presidential-immunity grounds, with the argument that grand jurors and trial jurors improperly heard now forbidden evidence involving official presidential acts.
“If he goes for it, and adds the presidential-immunity question to his cert petition, all it takes is four justices to take up the question, notwithstanding the procedural reasons the court would ordinarily not take up the question at this stage,” Paradis said.
“The odds that the court would take up the issue, and maybe even enter a stay of the sentencing, are more than zero,” he said.
But might the court go further? And more significantly, might it go faster?
Presidential immunity is an argument Trump’s lawyers have pushed, always unsuccessfully, in the lower courts for months in trying to escape the first criminal indictment and only conviction of a former president.
Significantly, in its landmark July 1 decision granting former presidents broad immunity, the court banned the use of official-act evidence in any prosecution, even for nonofficial crimes.
While it’s hard to paint falsifying documents to hide an election-eve hush-money payment to a porn star as an “official act,” Trump has argued that the case relied on significant official-act evidence, including a federal ethics form and an incriminating Oval Office conversation he had with Hope Hicks, his former advisor.
So what if Trump argues that the matter needs deciding before Election Day? What if he argues it would be irreparable harm for him to have to face an election with an unconstitutional conviction tainting his chances?
Paradis said it’s still his gut feeling that the Supreme Court wouldn’t go so far and so fast that Trump’s criminal record would be wiped clean before voters go to the polls.
“I doubt that is anywhere near compelling enough for even sympathetic justices to circumvent the number of procedural rules and norms that would have to be ignored to do anything meaningful between now and Election Day,” he said of an “irreparable harm” argument.
Still, he said, “I could be surprised.”
A lawyer for Trump and a spokesperson for the district attorney’s office did not immediately respond to requests for comment on this story.
“It would be the most wildly aggressive judicial intervention into a presidential election in US history,” Paradis said of the possibility of a pre-Election Day overturning of Trump’s lone criminal conviction.
“It would make Bush v. Gore look like a decision from a traffic court,” he added.
