On Sunday, Trump wrote on Truth Social, his personal social media site, that the Supreme Court “MUST” intervene after a New York jury found him guilty of 34 counts of falsifying business records. Though Trump’s post wasn’t written with the precision of a legal brief, he appeared to float two separate theories that could justify tossing out his conviction: that the judge was impermissibly biased and that the prosecutor was out to get Trump.
Trump’s rant was echoed by many Republicans, including US House Speaker Mike Johnson, who claimed that he knows many of the justices personally and that “they are deeply concerned about” Trump’s conviction.
Speaker Johnson is undoubtedly correct that many of the justices are upset that the leader of their political party was convicted of multiple felony counts, a fact that could lead some voters to favor President Joe Biden over Trump in the 2024 election.
Last March, five of the Court’s six Republicans voted to effectively neutralize a provision of the Constitution that prohibits former officials who “engaged in insurrection or rebellion” against the United States from seeking high office again. (All nine justices voted to reverse a state court decision tossing Trump off the ballot, but only five voted to effectively immunize Trump from accountability under this provision of the Constitution.)
Similarly, the Supreme Court has for months delayed Trump’s federal criminal trial for attempting to overturn Biden’s victory in the 2020 election, all but ensuring that it won’t take place until after the November election.
But will the justices step in to nullify the one Trump criminal trial that was tried to conviction before the election? And can the Court’s Republican majority intervene fast enough to throw out the conviction before voters cast their ballots this fall?
Let’s take these questions in reverse order.
How fast could a partisan Supreme Court move to bail out Trump if it wanted to?
Assume, for just a moment, that a majority of the justices are partisan hacks who are determined to remove the stigma of a felony conviction from the Republican presidential candidate before the election. Could they actually invalidate his conviction before the November election?
The answer to this question should be “no.” Under the rules that apply to criminal defendants who are not named Donald Trump, two state-level appeals courts should review Trump’s conviction before the justices could intervene. Both of those courts would ordinarily take months or longer to review a criminal appeal.
To toss out Trump’s conviction before the election, the Court would have to take such extraordinary procedural liberties that this outcome is probably unlikely. But it’s also not possible to rule it out entirely. Not that long ago, it seemed unthinkable that the Court would give serious thought to Trump’s argument that he is immune from prosecution for his attempt to overthrow the 2020 election. At oral argument in that case, however, most of the justices appeared eager to rule that former presidents have, at least, some immunity from criminal prosecution.
The Roberts Court also has a history of embracing legal arguments that were widely viewed as risible by the legal community after those arguments were adopted by the Republican Party. So, with a wide range of elected Republicans now calling for Trump’s conviction to be tossed out, there is a real risk that the GOP-appointed justices will leap on this bandwagon.
This Supreme Court also has a history of manipulating its calendar to achieve substantive results. During the Trump administration, for example, when a lower court blocked one of Trump’s immigration policies, the Court would often race to reinstate that policy days or weeks after the administration’s lawyers asked the justices to do so. After Biden became president, however, the Court started sitting on similar cases for nearly a year, even in cases where the Court ultimately concluded that the lower court was wrong to block one of Biden’s policies.
Similarly, after the Colorado Supreme Court held that Trump must be removed from the 2024 ballot because of his role in the January 6 insurrection, the Supreme Court reversed that decision on an extraordinarily expedited time frame, hearing oral arguments and deciding the case a little more than two months after the Colorado court’s decision.
By contrast, the Court has now delayed Trump’s federal election theft trial for nearly six months. And, based on the questions many justices asked during an April oral argument, the Court appears likely to hand down a decision that will force more delay and ensure that Trump is not tried before the November election.
Even so, to bypass the two state-level appeals courts that are supposed to consider Trump’s conviction before the Supreme Court weighs in, the justices would have to engage in some truly extraordinary procedural gymnastics. Even Speaker Johnson didn’t expect the Supreme Court to move quickly when he predicted that the justices would eventually step in to help Trump: Johnson told Fox News that “it’s going to take a while.”
Trump’s conviction will first appeal to New York’s intermediate appeals court (which, somewhat confusingly, is called the “appellate division” of the state’s “Supreme Court”). After the appellate division weighs in, the losing party can then appeal that decision to the highest court in New York, which is known as the “Court of Appeals.”
Except in very rare cases, any appeal of any trial court decision will take months. Trump’s lawyers will need time to review the record in the trial and decide which issues they want to appeal, and they will need more time to brief the case. Then, the prosecutors will also need sufficient time to review Trump’s briefs and prepare their own responsive brief, which Trump’s lawyers will then be given some time to respond to. Once the briefs are ready, they will be distributed to a panel of judges, who ordinarily spend months reviewing the case, conducting oral arguments, and writing an opinion. This process can take even longer if a judge dissents.
This is just a brief summary of the process that will take place in the appellate division. If Trump plans to bring this case to the US Supreme Court, he will have to repeat this lengthy process in both the New York Court of Appeals and in the Supreme Court itself, and both of those courts have their own time-consuming process to decide which cases they will hear in the first place.
The Supreme Court does have a process, known as “certiorari before judgment,” which can be used to bypass one or more appellate courts and bring a case directly to the justices, but cert before judgment is supposed to be granted only in the most exceptional cases. The Court’s rules provide that it “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” (Notably, when the shoe was on the other foot, the Supreme Court denied special counsel Jack Smith’s request for cert before judgment in the Trump immunity case.)
It’s hard to see what earth-shattering legal issue could be raised by a state-level prosecution over falsified business records that could justify such a deviation from normal procedures — unless, of course, the justices believe that there is a moral imperative to rescue the Republican candidate from an embarrassing news story.
In any event, even if the justices are inclined to move fast enough to toss out Trump’s conviction before the election, Trump’s lawyers would need to formally ask them to do so. So the thing to watch right now is whether Trump’s legal team takes the audacious step of seeking cert before judgment in the Supreme Court.
What would be the legal basis of a Supreme Court decision tossing out Trump’s conviction?
As a general rule, each state’s highest court has the final word on questions of state law, and the Supreme Court is only supposed to get involved in a case if there is some allegation that the lower courts either violated the Constitution or a federal law. This matters because, while there are some plausible legal arguments Trump could raise on appeal, these arguments largely turn on the proper way to understand New York’s laws.
Trump’s strongest argument, for example, turns on the question of whether he was properly convicted of violating the felony version of New York’s business records law, as opposed to a weaker misdemeanor version. But, while there is genuine uncertainty about how to read this law, the question of how to read a New York criminal statute is a question of state law and thus should be resolved exclusively by New York’s state courts.
In his Truth Social post, Trump does hint, in his own way, at two legal arguments that could be raised under federal law. He claims that the prosecutor was improperly biased (“Radical Left Soros backed D.A., who ran on a platform of ‘I will get Trump’”) and that the judge is also too biased to hear his case (“appointed by Democrats, who is HIGHLY CONFLICTED”).
Yet, while it is theoretically possible to challenge a conviction on the grounds that the judge or the prosecutor was unconstitutional biased, as a practical matter these sorts of cases are almost impossible to win.
Before we get into that, it’s important to note that Trump’s allegations against prosecutor Alvin Bragg and Judge Juan Merchan are, to put it mildly, exaggerated. Bragg did not run on an “I will get Trump” platform. He did, while he was campaigning for his current job, highlight his previous experience bringing civil lawsuits against Donald Trump, but that’s because Bragg’s predecessor had already opened a criminal investigation into Trump. So it appears that Bragg was trying to convince voters that he had the experience necessary to take over supervision of this ongoing investigation.
As a candidate, Bragg also emphasized that he will “follow the facts” in that investigation and that “every case still has to be judged by the facts and I don’t know all the facts.”
Similarly, it’s unclear what could be the basis of a recusal motion against Justice Merchan. The fact that Merchan was “appointed by Democrats” is not a valid reason to remove him from the case, any more than Judge Aileen Cannon, the Trump appointee overseeing a different Trump prosecution, can be removed from that case solely because she was appointed by Trump.
Similarly, some of Merchan’s critics have questioned a $35 donation the judge made to a pro-Biden organization. This donation is not ideal, but it also is not a basis for recusal. If judges could be forced off of cases solely because of such a small-dollar political donation, many judges would be forced off of countless cases.
That’s because most judges are either political appointees or elected officials, and people with political ambitions donate to political candidates and organizations all the time. Cannon, for example, gave $100 to Republican Florida Gov. Ron DeSantis. Judge Tanya Chutkan, the judge overseeing the election theft case that the Supreme Court has put on hold, made multiple donations to President Barack Obama, in addition to a 2008 donation to Democratic Sen. Kirsten Gillibrand.
So let’s walk through what the law actually says about when a prosecutor or judge can be removed from a case because of unconstitutional bias.
For prosecutors, the leading case is United States v. Armstrong (1996). Armstrong did hold that the Constitution places some limits on “selective prosecution,” such as if a criminal defendant were targeted because of their race or religion. Because the First Amendment typically prohibits “viewpoint discrimination,” it follows that a politician could not be targeted because of their political beliefs.
As a practical matter, however, Armstrong laid out a legal standard that is almost impossible for anyone challenging an allegedly selective prosecution to overcome. “Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one.” To prevail, Trump would have to show that “similarly situated individuals” who do not share his political views “were not prosecuted.”
Selective prosecution claims are so hard to win that several scholars have argued that no court has ruled in favor of a party claiming they were impermissibly prosecuted because of their race since Yick Wo v. Hopkins (1886). Admittedly, the most recent paper I was able to find examining these cases was published in 2008, so it’s possible that such a party has prevailed since then. Still, the fact that more than a century passed without such a case succeeding suggests that the bar in these cases is virtually impossible to clear.
There are good reasons, moreover, why it is so hard to prevail in a selective prosecution case. For starters, prosecutors are supposed to be biased in favor of convicting criminal defendants. It is literally their job to do so. Defendants, moreover, enjoy a wide range of protections, such as the requirement that the prosecution must prove their case beyond a reasonable doubt to a unanimous jury. So even if a prosecutor does bring a case for unjust reasons, they don’t have the power to convict that defendant on their own.
The constitutional rules governing judicial recusals are a bit more nuanced, but it is still very difficult to remove a judge from a case because of allegations of bias. Just look at Cannon, the Trump appointee who has behaved like she is a member of Trump’s defense team in his stolen documents case but who has not yet been forced off the case.
Generally speaking, the Constitution only requires a judge to be removed from a case when they have a financial stake in the case’s outcome or when the judge has an unusual personal stake in the case. In Mayberry v. Pennsylvania (1971), for example, the Court held that a judge who was “cruelly slandered” by a criminal defendant should not preside over that defendant’s trial for contempt of court because the target of these insults was unlikely to “maintain that calm detachment necessary for fair adjudication.”
In Caperton v. Massey (2009), the Court did hold that, in extreme cases, campaign donations can justify recusal. But, as the Court emphasized in Caperton, that case involved an “extraordinary situation” that went well beyond any ordinary case involving a judge who gave or accepted political donations: A wealthy businessman, who had a case pending before the West Virginia Supreme Court, spent $3 million to elect a justice who then ruled in favor of the businessman’s company.
That’s a far cry from Merchan’s (or Cannon’s, or Chutkan’s) much smaller donations to political causes.
Caperton, moreover, also emphasized “States may choose to ‘adopt recusal standards more rigorous than due process requires.’” The Constitution has very little to say about judicial recusals because codes of judicial conduct are the “principal safeguard” against unethical judges. But that also means that the US Supreme Court should play virtually no role in policing claims that a state judge is impermissibly biased.
So it’s hard to imagine a legitimate reason why the Supreme Court might get involved in Trump’s New York case.
Given the justices’ previous behavior in other cases involving Donald Trump, however, we cannot rule out the possibility that they may get involved anyway.
