AN ANCIENT LEGAL PROCEDURE CALLED HABEAS CORPUS COULD KEEP TRUMP OUT OF PRISON, BUT REPUBLICANS GUTTED IT IN 1996. WILL THEY RESTORE IT?

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NEWS ANALYSIS

“This is long from over,” Donald J. Trump blared after he was convicted of 34 felony counts of falsifying business records, to cover-up a potential sex scandal, in New York last Thursday. 

Now comes the real legal fight. In many ways, the outcome of the trial was "fixed" by decisions the trial judge, Juan Merchan, made before the trial—just not in the malicious way Trump has repreatedly stated. These decisions—called “rulings”—will be thoroughly scrutinized in appellate courts.

That likely includes, sooner or later, the U.S. Supreme Court.

Chief among the rulings Judge Merchan made that are almost certain to be questioned was allowing Manhattan District Attorney Alvin Bragg to prosecute Trump under a novel legal theory never before used to prosecute a defendant in New York or, indeed, any of the 50 states. 

Precisely because of its novelty, Trump's conviction is exposed to reversal based on the rule of lenity—a long-standing constitutional principle that protects defendants from newly-minted interpretations of law, as The Free Lance examined on Friday.

Meanwhile, Judge Merchan still has to sentence Trump, which he scheduled for July 11. Here's what comes next for the former president.

POSSIBLE PENALTIES

Falsifying business records is a class "E" felony under New York law—the least serious. Convictions carry a potential maximum sentence of imprisonment of 1   1/3-to-four years. 

Anything over one year means Trump goes first to Rikers Island then to state prison after being sentenced. 

It is possible Judge Merchan could sentence Trump to consecutive terms for each of the 34 counts he was convicted of. If he does, New York law automatically caps the maximum consecutive sentence for multiple class E felonies at 20 years. The law requires minimum sentences be at least 1/3 of the maximum, so the longest prison sentence Trump faces is 6 2/3 to 20 years. 

On the other hand, New York law also allows Judge Merchan to go easy on Trump. 

It allows him to send Trump to Rikers Island (instead of state prison) for a year, for some period less than a year or even just for weekends—what New York law calls "intermittent imprisonment," which is "served on days or during certain periods of days, or both."

New York law doesn't allow Judge Merchan to sentence Trump to house arrest, but it does allow probation for "a term of three, four or five years."

In order for Trump to qualify for probation, Judge Merchan must find its "not inconsistent with the ends of justice" and that Trump "is in need of guidance, training or other assistance which, in his case, can be effectively administered through probation supervision."

It's also possible for Judge Merchan to sentence Trump to a conditional discharge or a unconditional discharge—the former akin to probation without required reporting, the latter a proverbial "slap on the wrist" that New York law says shouldn't be imposed unless absolutely "no proper purpose would be served by imposing any condition upon the defendant's release." 

Finally, New York allows Judge Merchan to fine Trump up to $5,000 for each conviction—if they're based on independent facts—for a total of $170,000.

PRESENTENCE INVESTIGATION INTERVIEW & REPORT

Before Judge Merchan can sentence Trump, New York law requires him to order the City's Department of Probation to conduct an investigation and prepare a Pre-Sentence Report. He did so in court after the jury rendered its guilty verdicts last Thursday. 

According to the state court system, pre-sentence reports are significant because judges use them "to help decide the defendant’s punishment for the crime." That's why "the pre-sentence interview is a chance for the defendant to try to make a good impression and explain why he or she deserves a lighter punishment." 

The reports typically end with a sentencing recommendation—usually either jail or probation. 

Typically, a defendant is interviewed by a probation officer, who documents what the defendant says relevant to sentencing. While the law requires the investigation and report, it does require defendants submit to questioning. 

However, if a defendant declines to be interviewed, that's usually used to recommend jail. 

Defendants free on bail or their own recognizance, like Trump is, are typically ordered to stop at the probation office in the courthouse to schedule an interview before they leave the courthouse. On Thursday, Trump did not.

What Trump is likely to say, based on his public comments condemning the verdict, would only hurt not help him with a typical probation officer. They want defendants to accept responsibility and express remorse—not deny guilt, blame perceived persecutors and vow vengeance.

"He's gonna step on his own dick," is how one former probation officer put it.

"'Not amenable to community supervision,'" is what the official predicted Trump's pre-sentence report is going to say. "The next thing that's coming down the pipe is that pre-sentencing investigation and that is what it's going to say. 'Not amenable.'"

Under New York law, pre-sentence investigation reports are treated as confidential. They are not added to the public record of the case, so the public might never know what the recommendation is.

However, the former probation official said, the "judge can lean on the pre-sentencing investigation as a means to justify his sentence. So it's possible that at sentencing the judge will make the naughty bits public."

MOTION TO VACATE VERDICT

New York law allows convicted defendants to ask the court to vacate the verdict before they're sentenced. They're called 330.30 motions, after the section of the Criminal Procedural Law authorizing them. The allowable grounds for a 330.00 motion are broad. 

Defendants are allowed to argue there's new evidence, juror misconduct or "any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court."

Assuming there's no new evidence or juror misconduct, the best argument Trump could make is that the Rule of Lenity requires all the convictions be vacated. It's the strongest, simplest and, if accepted, it gets all the charges dismissed forever. 

After that, Trump has an extremely strong argument Judge Merchan violated his federal constitutional right to due process of law. That's because Merchan allowed the prosecution to not give Trump advance notice what law he allegedly violated that formed the basis of the felony falsification charges.

Falsification of business records is ordinarily a misdemeanor, under New York law. It gets elevated to a felony if it was done with "an intent to commit another crime or to aid or conceal the commission thereof." That other crime is what lawyers call an "element" of the felony falsification charge. 

But Trump and his lawyers didn't find out what, exactly, the other crime prosecutors were relying on was until the prosecution's closing argument—which came after all the evidence was presented and Trump's lawyers had spoken. That's not how the system is supposed to work.

In brief, Judge Merchan allowed prosecutors to play a legal "shell game" with its evidence—which deprived Trump of the chance to meaningfully counter it. 

Lastly is the other crime itself: which prosecutors finally said was election fraud based on the fact he concealed payments with alleged sex partners to keep them silent. But, as the Libertarian legal scholars at Reason Magazine argue, those payouts are not just legal, they're protected by the First Amendment.

SENTENCING

Judge Merchan will likely deny Trump's 330.30 motion.

The job of a state court judge is to convict defendants—anyone who says otherwise is naive to the way the American criminal legal system works. If there's any way to sustain a conviction, that's what they do. In this case, Merchan has already rejected most of the arguments Trump could make and there's no real reason for him to undo what he's already done.

“Judge Merchan tends to be harsher on white collar criminals than many other judges,”veteran criminal defense attorney Ron Kuby told Courthouse News. “That’s just his reputation … so that’s bad news for Trump.”

That’s the judge Trump is going to face on July 11—totally unrepentant, defiant and with a pre-sentence report that likely recommends prison.

On the other hand, Trump was only convicted of non-violent "paper" felonies. At 77, Trump's not just a former president, he's a senior citizen.

Still, people go to prison for falsifying records all the time—just ask Staten Island Joe.

Sentencing Trump to probation is problematic because he's facing more charges in multiple jurisdictions and the number one condition of any probation sentence is to stay out of trouble. If Trump is convicted on any other charge, Judge Merchan will have to re-sentence him. If I were Judge Merchan, I would never want my courtroom filled with the Trump circus ever again. 

All this weighs against sentencing Trump to probation.

Another possible no-jail sentence is conditional or unconditional discharge, but conditional discharges—like probation—are based on the defendant staying out of trouble. And an unconditional discharge is even less than the proverbial "slap on the wrist" probation would be.

Finally, some commentators have suggested Merchan delay Trump’s sentencing until after the presidential election in Nov. If he does that, he might never have the chance to sentence Trump because if Trump’s elected he will invoke presidential immunity—which will shield him from prison at least until after he completes serving his four-year term as president.

Considering all these complicated factors, what should Trump’s sentence be?

If I were the judge, I'd sentence Trump to a month or so of weekends in jail on Rikers Island. He can still campaign and can't complain his chances for re-election are being sabotaged further, but he's still significantly punished. 

The helicopter TV live shots of Trump's Secret Service motorcade passing over the bridge onto Rikers Island will be seen by everyone, every time he has to report to serve a weekend in jail. They ‘ll be seen over and over again. They will never be forgotten. That's a public shaming, weekend after weekend, and a powerful deterrent, which sentences are supposed to serve.

It also might actually do some good by focusing the public’s attention on conditions of confinement for everyone else on Rikers.

Once Trump has served the weekends, he's done. That's it. Even if he gets convicted in another case, he doesn't have to be re-sentenced by Merchan. It’s a nice clean finish. 

TRUMP'S APPEAL

Even if Judge Merchan sentences Trump to jail or prison time, it's not likely Trump will ever have to actually serve any of it.

That's because Trump will appeal and the appeals court will grant him a stay of his sentence until it decides his appeal since that's what appeals courts typically do in white-collar cases like Trump's. Only if Trump loses his appeal, will he have to serve his sentence.

But, ultimately, Trump is not likely to lose his appeal.

Trump's first appeal goes to New York's intermediate appellate court, the Appellate Division. Like state trial judges, the main job of a state appellate court judge is to affirm convictions—not overturn them. That's what they do in the vast majority of cases. Given the complexity of the legal issues involved, look for a splintered decision offering different reasons to affirm Trump's convictions—but affirming them just the same.

After that, Trump can appeal to New York's highest court if it or a judge on the Appellate Division gives him permission. He is likely to be granted permission—not just because he's a former president, but because of the complexity of the legal issues. 

Once at the Court of Appeals, Trump has a good chance of winning. After all, this is the court that just reversed Harvey Weinstein's convictions. If Trump loses at the Court of Appeals, that's when the Supreme Court can take the case—as it almost certainly will.

HABEAS CORPUS

There's a way Trump can bypass New York's appeals courts and take his case directly to federal court—which could lead to the Supreme Court intervening and taking the case within weeks instead of months or years. It's called habeas corpus. 

Habeas corpus dates back more than 9 centuries to pre-Magna Carta English common law. It's the legal mechanism courts use to order a person's jailor to bring that person to court so that a judge can inquire into the legality of a person's imprisonment. Literally it means "you have the body"—produce it in court. 

"The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action," the US Supreme Court ruled in 1969. Its broad "scope and flexibility" give it the power "to cut through barriers of form and procedural mazes." 

Judges, the Court added, must enforce the Great Writ "with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected."

In order to file a habeas corpus petition in federal court, defendants must normally "exhaust" their state court appeals. In New York, that means appealing to the Appellate Division and then the Court of Appeals if permission is granted. But the federal habeas corpus law, 28 USC § 2254, contains an exception if "circumstances exist that render such process ineffective to protect the rights of the applicant." 

The presidential election could be considered just such an exceptional circumstance. The public has a strong interest in knowing, for certain, whether Trump is a felon or whether he was unjustly convicted in a political witch hunt by partisan public servants in New York. 

Normally, an appeal to the Appellate Division and then, if necessary, to the Court of Appeals would take at least a year. Trump can ask the Appellate Division to expedite consideration of his appeal so that it's decided in weeks instead of months. 

The court has the discretion to deny such a motion, but if it does it opens the door to Trump to file a habeas corpus petition in federal court on the ground that state court exhaustion before the election is impossible and therefore should be excused.

Trump could go right to federal court anyway, but a state court decision denying him an expedited appeal would make his argument "circumstances exist that render such process ineffective" much, much stronger.

There's another problem with habeas corpus review for Trump. 

Even if Trump convinces a federal court to allow him to bypass an appeal through New York's courts, the right to habeas corpus was restricted by the Supreme Court in the early 1990s. It was effectively gutted by the Anti-Terrorism and Effective Death Penalty Act of 1996—the Washington Post called it the "worst criminal justice law of the past 30 years" in 2021. 

AEDPA, as it's called by lawyers, requires habeas corpus petitioners to show not just that their convictions were obtained in violation of the Constitution. It requires them to show the violation "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 

If a particular constitutional violation was never recognized by the US Supreme Court, the petitioner is out of luck and the petition must be denied—even if the constitutional violation was the result of a novel theory of prosecution, like the novel theory behind Trump's prosecution. 

Congress, of course, can repeal AEDPA and restore habeas corpus at any time—as many, including Sen. Elizabeth Warren (D-Ma), have said it should.

Until then, Trump's only valid habeas corpus claim may be the Rule of Lenity, which the Supreme Court has applied since it decided United States v. Wiltberger in 1820.

SUMMARY

An appellate court battle royale over Trump's conviction is teed-up. Trump faces the real prospect of being sentenced to at least some jail time when he faces Judge Merchan on July 11. Oddly enough, being sentenced to weekends on Rikers is arguably in the best interest of the public, the court and even Trump himself.

Trump's appeal through state court is likely to be prolonged, unless he can convince the courts to accelerate it. If the state courts refuse, he can ask a federal court to consider his appeal via habeas corpus—which could result in the Supreme Court hearing the case sooner than expected.

Even if it does, though, Trump faces significant hurdles because habeas corpus was severely restricted by Congress with the AEDPA in 1996—unless Congress repeals it and restores the Great Writ with the full power it historically had.

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