The Volokh Conspiracy

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American Voters Need Fast U.S. Supreme Court Review of the Constitutionality of President Trump's Convictions

New York state courts must rule quickly and separately, if they can under New York law, on the constitutionality under the First Amendment of President Trump's recent criminal convictions.


As I wrote earlier on this blog site, President Donald Trump's First Amendment freedom of speech rights render his recent convictions in a Manhattan New York State trial court unconstitutional. The unconstitutional trial that President Trump was subjected to occurred in the most liberal borough, of the most liberal city, of one of the most liberal States in the country. This unconstitutional trial has poisoned the ongoing federal presidential election of 2024 based on a misinterpretation of federal election law making immediate federal Supreme Court review essential. The New York Court of Appeals must rule quickly on the constitutionality of President Trump's convictions, so that President Trump can get federal Supreme Court review of his First Amendment claims well before the November presidential election. American voters deserve to know as fast as possible if President Trump's criminal convictions are unconstitutional, as I believe them to be.

There are many issues of state law on which President Trump can and should appeal his convictions due to the improper behavior of both the trial judge and the district attorney. But, it is imperative that those issues be separated, if possible under New York law, from the federal question of the violation of President Trump's First Amendment rights so that that issue can be addressed quickly by the federal Supreme Court.  President Trump should ask for a bifurcated appeals process whereby his First Amendment federal question gets ruled on immediately by the New York Court of Appeals, even as a longer appellate process takes place to consider President Trump's many New York State law claims on appeal.

28 U.S.C. Section 1257(a) provides that: "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari *** where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of*** the United States." President Trump's claim that his recent convictions are in violation of the First Amendment are reviewable by the federal Supreme Court by a writ of certiorari once the New York Court of Appeals has ruled on them.

It is clear under U.S. Supreme Court caselaw that President Trump need not exhaust all of his many appeals under New York State law before the U.S. Supreme Court can rule on his First Amendment freedom of speech claims.  In Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), the Supreme Court held that a ruling by the highest court of a State on a federal question is a "Final judgment" even if there may still be state court proceedings going on under which President Trump could get his convictions reversed.

In fact, the Supreme Court in Cox Broadcasting v. Cohn said that "There are now at least four categories of *** cases in which the Court has treated the decision on the federal issue as a final judgment for the purposes of 28 U.S.C. Section 1257 without awaiting the completion of *** additional proceedings in the lower state courts." One such category is present here where President Trump's nationally important federal question as to the First Amendment might escape U.S. Supreme Court review if Trump prevails on one of his many State law grounds of appeal.  See also Michigan v. Long, 463 U.S. 1032 (1983) and Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 (1945) liberally construing the Final Judgment rule of 28 U.S.C. Section 1257(a).

As a matter of comity in our federal court system, it would be unconscionable for the New York State appellate courts to do anything other than to expedite U.S. Supreme Court review of President Trump's federal constitutional claims. American voters need to know as fast as possible whether the federal Supreme Court thinks the convictions produced in the most left-wing jurisdictions imaginable are, or are not, constitutional.