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.

Comments

[Dr. Ed 2]

They are not “Liberals” and they are DEFINITELY not “liberals” — they are at best Leftists although even that doesn’t go far enough people who are textbook fascists.

Yes, let’s call it what it is, Donald Trump is the victim of textbook fascism. Textbook Banana Republic fascism which usually has no small amount of Marxism thrown in for good measure.

New York: The Jackbooted Fascist State.

The (lower-case “l”) liberal believes that the human value of his opponent is more important than winning the debate, such persons find what has been done to Trump to be reprehensible.

[Randal]

Or, Trump's simply a crook.

[Rev. Arthur L. Kirkland]

Is this unhinged Federalist Society hack at a white, male Federalist Society blog also calling for Trump’s other trials to be expedited because “American voters need to know”?

Or, instead, is this guy as much a partisan right-wing hack as Prof. Blackman and former professor Volokh are?

Carry on, clingers.

[Doug Heffernan]

Of course not. Calabresi has labeled Cannon a heroine for slow walking the documents case. This will work out perfectly, since Trump is pretty much a lock to win the election, and then Trump can (sua sponte) dismiss the case against himself, cutting out all of the middlemen.

For the NY State case, Trump needs more help from judges that he appointed to kill that case, since even once he wins the election, he won't be able to kill it all by himself.

If the first amendment doesn't allow labeling hush payments as attorney expenses, what else is it good for? Interpretations of the first amendment that allow unlimited unidentified campaign contributions, and for crushing unions – are all good, but if it doesn't also cover hush payments and subjective religious behavior, then what is the amendment really good for? You can be sure that the founders intended it to apply to payoffs of these sorts.

[Dr. Ed 2]

I don't see falsifying your own, personal, business records being a crime. If it is (a) a publicly traded company, (b) public entity or charity, or perhaps even (c) a partnership -- there would be fraud because someone ELSE would be harmed. Likewise if you filed fraudulent records with the state or federal tax folks.

But who got harmed here? What if Trump had written "beer money" on the checks to Cohen as a joke? Or nothing at all?

Who got harmed?

[Nige]

'I don’t see falsifying your own, personal, business records being a crime'

Well, you voted for a fraudster, so maybe you just support crime?

[Rev. Arthur L. Kirkland]

"since Trump is pretty much a lock to win the election"

I am still not convinced there are enough poorly educated, roundly bigoted, superstitious hayseeds left in America -- Trump has never won a popular vote unless people were being asked whether he was guilty, and the cranky old conservatives have been dying off in the natural course since 2016 -- to enable Trump to win. He still could pull off another three-cushion trick shot at the Electoral College, but taking the popular vote seems a stretch.

[bernard11]

This pretty much nails Calabresi and tells us where he's coming from.

He is a hack who just wants Trump off the hook, by fair means or foul.

I'd be glad to see a deal where the Supreme Court reviews the NY verdict this afternoon, provided that at the same time Cannon is booted from the documents case (she should be booted from the bench, but I'll settle) and a trial gets started ASAP, like in a week or two, with no more of the delaying BS from Trump, or the judge.

[Dr. Ed 2]

A crook who stole from himself.
Cute...

[LawTalkingGuy]

Funnily enough if you’ve ever read a textbook you’d know that the terms leftist, fascist, Marxist, and banana republic are all describing quite different things, none of which apply to the present case.

[Dr. Ed 2]

George Orwell would differ.

[Sarcastr0]

You're the one redefining terms. A newspeak, if you will.

[Dr. Ed 2]

The timeline here indicates the plot -- with sentencing four days before the convention, it is fairly clear that the intent is to have Trump in prison during his convention and that will be the point where it is all over. I can't see SCOTUS ruling before then.

Well, 244 years of freedom, it was a good run, and it will be a long time before humans are free again...

[Vryedni]

The sentencing date is within the range requested by Trump's lawyers, Einstein.

[ObviouslyNotSpam]

Clever...

[Balisane]

No, the homosexual apologist John Roberts will want to let it "percolate."

[Dan Schiavetta]

I've litigated in all three levels of New York's (weird) court system for 30 years. Prof. Calabresi should withdraw this post until he reads up more on it.

[Martinned2]

So you're telling me that Trump can't appeal from the New York Supreme Court to the US Supreme Court?

[Darwinnie]

Correct. The NY Supreme Courts (plural) are trial courts. Unless SCOTUS makes an exception because, you know, Trump shouldn’t be treated the same as the rest of us riffraff.

[ObviouslyNotSpam]

That is almost certainly what Steve wants.

[Gasman]

A distinction one would think most of the public should by now understand, given Law and Order has been running for more than 30 years now.
Though I do think the show's writers either do not understand the distinction, or purposefully obfuscate the significance when referring to the New York state Supreme Court(s).

[Stephen Lathrop]

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.

Sounds reasonable. So long as SCOTUS first delays a few months, then stipulates briefing on an open-ended list of irrelevancies, then hears arguments, then takes months to consider the case, without any regard at all for the interest of the American People in being fully informed prior to the election.

[Randal]

American voters deserve to know as fast as possible if President Trump's criminal convictions are unconstitutional, as I believe them to be.

Uh... where were you when the court was dragging its feet on the immunity case?

[santamonica811]

Good job, whore.

You’re definitely in a class by yourself here. The lack of moral fiber is not surprising…whore’s are not exactly known for having a moral compass. But it’s the shir-for-brains arguments you make that bemuse me. You’re a professor at a legitimate law school. I'm not sure who you killed, or fucked, to get your job. But nicely done, regardless.

Keep spreading those legs wide. Or opening those purdy lips nice and wide …or whatever the hell metaphor fits best.

You’re the biggest embarrassment ever to post regularly at the VC. I guess that is impressive, in a macabre way. Now get back on your knees, so you can give Trump more of that sweet sweet love.

You. Are. The. Worst . . . Seriously.

[rjp225]

Without adopting your unhelpful language (“whore,” etc.), I agree that it’s surprising that this author appears to be a real professor at a real law school. Is he like an Amy Wax figure — an embarrassment that the school somehow got stuck with? I’m genuinely puzzled.

[Randal]

There've been suggestions of a recent stroke. The onset of whack was quite sudden.

[Dr. Ed 2]

Goldwater Rule!

[Rev. Arthur L. Kirkland]

The Volokh Conspirators are all Amy Wax figures. Even the folks at Berkeley must be wondering when their right-winger might go full clinger on them.

[ReaderY]

Arguing that politicians have a constitutional First Amendment right to pay off hookers with campaign funds and lie about it isn’t being a whore.

It’s being a pimp.

[Sonja T]

1 -He did not use campaign funds
2- paying off the hooker with personal funds is not a campaign / election violation.

Bragg and the judge misrepresented the applicable law.

[damikesc]

Judge even allowed the prosecution to lie and claim Trump broke federal election laws, which was simply not true.

[Randal]

You guys are just so far gone from reality.

He did not use campaign funds

According to the jury it was effectively a campaign donation.

paying off the hooker with personal funds is not a campaign / election violation

It is when they’re Michael Cohen’s personal funds.

Judge even allowed the prosecution to lie and claim Trump broke federal election laws, which was simply not true.

Neither the prosector, judge, nor jury claimed that Trump broke federal election law. The jury just needed to decide whether Trump thought he or Cohen had violated the law, it doesn’t even matter whether he actually did.

Although, Cohen having gone to prison for it is a good sign they actually did.

[John Rohan]

You seem to be confusing "campaign funds" with "campaign donations" with "campaign spending".

Trump used his personal funds to pay off Daniels. Bragg says that amounts to unreported campaign spending (even though that's the jurisdiction of the FEC, but that's another issue). So by Bragg's logic, that means that Trump could have legally paid off Daniels using campaign funds. Yet there is not a doubt in my mind that had he done so, he would be prosecuted for that instead.

[Randal]

Trump didn’t even pay off Stormy, Cohen did. Your facts are so far gone they’re living in a Bangkok hostel.

[Tilted]

That isn't what happened and that isn't the prosecution's theory of the case. Had President Trump paid Ms. Daniels, Ms. McDougal, and the doorman with his own personal funds, then presumably that wouldn't have been illegal.

What the prosecution alleges is that others paid those people. Mr. Cohen, e.g., paid Ms. Daniels for the settlement agreement / purchase agreement / non-disparagment agreement / copyright assignment / whatever you want to call it. Mr. Cohen plead guilty to making an illegal campaign contribution based on that payment.

That's one of the FECA violations alleged. And if the facts are as alleged by the prosecution, then that most likely was an illegal campaign contribution. It doesn't matter that President Trump eventually paid him back, it would still be an illegal contribution. The pivotal question is whether Ms. Daniels would have been paid even if President Trump wasn't running for election and the prosecution presented evidence to the effect that she wouldn't have been.

President Trump may also have (criminally) violated FECA by knowingly and willfully accepting that illegal contribution, but proving that would be a little more difficult.

The jury wasn't even instructed on reporting violations under FECA. It also wasn't instructed on the accepting illegal contributions aspect of FECA. So the prosecution was, when it came to the FECA theory for the required unlawful means (under NY Election Law §17-152), hanging its hat on the illegal contributions made or caused to be made by Mr. Cohen.

We live in a time where, to combine metaphors, straw men are massacred and windmills are tilted at with such frequency and fervor that it's hard to believe wheat farmers and lance makers can keep up with demand. But this case in particular would seem to have them working overtime.

[Randal]

Can someone who speaks Calabresian please explain to me where Trump's free speech is implicated in all of this?

[rjp225]

Has this professor at a genuine school had some kind of breakdown? Because he definitely appears pretty unhinged. Trump’s “freedom of speech rights” render his conviction “unconstitutional”? That doesn’t make the slightest bit of sense. There is, of course, such a thing as interposing a federal constitutional defense to a state criminal charge — but I don’t believe that’s even been argued here. Or at least seriously argued.

[Dr. Ed 2]

Don't Violate the Goldwater Rule!

[Sarcastr0]

You don’t know what that is or who it applies to it seems.

You diagnosed Trump with ADD from afar. You are not only wrong but also a hypocrite.

[Sarcastr0]

It is genuinely hard to tell if this is old foolishness revealed or new foolishness from some kind of issue.

He’s previous papers all have co authors.

But this does not seem a healthy way to be, regardless.

[Doug Heffernan]

Whether or not Calabresi needs an intervention, or some time in a sanitarium, is a family matter, and not the focus of this blog. The people who run this blog obviously believe that Calabresi’s posts are within the bounds of scholarly discourse and not in need of any sort of editorial review.

[Dr. Ed 2]

Exactly, and I'm expecting SCOTUS to indirectly toss this conviction in the other immunity case, taking Nixon's position that it isn't illegal if the President does it, and that applies to state statutes as well.

Remember that these billing records are from 2017 when Trump was President, hence he's convicted of conduct conducted as President. SCOTUS is going to have to rule that the constitutional recourse is limited to impeachment and removal. Sovereign Immunity.

And when Spineless Roberts realizes that either the court could rule this way, or watch the country devolve into a shooting civil war, he's going to encourage such a ruling.

[EscherEnigma]

[...] that it isn’t illegal if the President does it [...]
Retroactively to before he was president?

Also, when did Nixon become a role model? This is a less extreme version of "Hitler had some good ideas".

[Sarcastr0]

No, Doug.

The conspiracy chooses who it comprises. The products each Conspirator puts out seem utterly unvetted.

[John Rohan]

Are you truly this ignorant or just trying to pretend to be?

This convoluted case used federal law as the "unlawful means" in which Trump supposedly violated NY section 17-152, which allowed them to bump up his minor misdemeanor to a felony.

[ObviouslyNotSpam]

One of three possible unlawful means, don't you mean?

[Voize]

Randal, Prof. Calabresi's theory is that since money spent on speech is speech, money spent on keeping someone else from speaking is also speech and any restrictions on that spending are First Amendment violations.

[Randal]

That's the best I could come up with too but.... really? All NDAs are first-amendment protected? That's sort of obviously false and stupid, right?

[Vryedni]

This fucking guy.

[Martinned2]

A number of the conspirators spent part of the weekend making fun of Vivek Ramaswamy's legal analysis:

Can Trump be pardoned by the President for the conviction in NY? Answer: YES. Here’s why: the New York felony charges directly relied on claims that Trump violated federal law. New York prosecuted Trump based on the novel legal theory that he committed a misdemeanor (falsifying business records) “with the intent to commit” another crime, including violations of federal campaign finance law. That means if the alleged federal violation is expunged, the state felony conviction disappears along with it. It’s shocking how far the MSM has gone in the last 24 hours to hide this fact by expressly writing headlines that a pardon is impossible.

https://x.com/VivekGRamaswamy/status/1797041594584961138

[Dr. Ed 2]

Would a pardon change the NY finding that he violated Federal law?

Now how you try a Federal crime in state court is beyond me, but still, what good would it do?

Now if it would, it would be a master stroke for Brandon to pardon both Trump and Hunter "for the good of the country."

[Vryedni]

[Randal]

There was no finding by anyone that Trump violated federal law. It's just some wacky mind-virus you've contracted.

[John Rohan]

They bumped the charges to felonies by claiming he violated federal law.

[Randal]

No, they bumped the charges to felonies by claiming that he thought he might be violating federal law.

[Sonja T]

The jury instructions specified the other crimes being - 1) violation of federal campaign law, 2) violation of state campaign law, 3) violation of federal tax law, 4) violation of state tax law.

I doubt he could be pardoned by the president for the violation of the federal laws, since he was convicted of falsifying business records under NY law.

[LawTalkingGuy]

Another way Trump is much like many other criminal defendants: coming up with crazy schemes to get SCOTUS to intervene is his case. Of course, other defendants don’t get prominent academics, members of the media, and politicians to endorse these crazy schemes. Nor do they actually have an outside chance of success unlike Trump. Other defendants aren’t special boys who get special rules.

[Dr. Ed 2]

Revolutions happen...

[LawTalkingGuy]

This is a complete non-sequitur to what I actually said.

[SRG2]

Not quite. Dr Ed is one of those microphallous MAGAs who infest the main Reason pages who swagger around threatening revolution every time their mummies don't let them stay up to play on their Xboxes.

[LawTalkingGuy]

Anyone ever read a non-Sov-Cit pro se habeas petition or other post-conviction filing? Because that’s exactly how this is written.

[David Nieporent]

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.

The New York courts should move approximately as fast as Ailene Cannon.

[Doug Heffernan]

How would that help Trump? Fast is good when it helps Trump. But slow is also good when it helps Trump. The factor to consider here is not consistency in speed, but consistency in helping Trump.

[David Nieporent]

It turns out that I was not trying to come up with a proposal that would benefit Trump.

[Dr. Ed 2]

What about the good of the country?

[ObviouslyNotSpam]

Doug, there is such a thing as playing it too straight.

[Commenter_XY]

The judicial branch is slow, deliberately so, Professor Calabresi. This has to wind it's way through the NY court system. It will be slow and tortuous. There is nothing anyone can really do about it.

NY is the bluest of blue states. What did you expect?

[apedad]

You've never been to upstate NY.

https://data.gis.ny.gov/datasets/sharegisny::nys-congressional-districts/explore?filters=eyJQYXJ0eSI6WyJSZXB1YmxpY2FuIl19

[Dr. Ed 2]

Taxachusetts is bluer -- not a single Republican in Congress nor state-wide office, State Senate down to just 4 republicans (10%), 25 republicans in the 160 member House.

[momo]

> The judicial branch is slow, deliberately so,

And that is a problem with lawfare

It is possible to knock a rival candidate out and have the courts drag their feet while your candidate wins.

We need fast review by the courts, and stiff penalties for prosecutors and judges that engage in lawfare.

This problem was clear since the Democrats started this in 2014 to remove Governor McDonnell (which was overturned unanimously by SCOTUS)

[MoreCurious]

And I hereby nominate Momo to determine (a) when a prosecution is brought because of a prosecutor's finding of probable cause that a defendant violated one or more federal or state laws or (b) when it's based on "lawfare" (whatever that is).

[WuzYoungOnceToo]

“lawfare” (whatever that is)

Ignorance isn't as cool as you seem to think it is.

[Randal]

Would you agree that the War on Drugs prosecutions were lawfare? Those were in service of an actual war, after all.

[Tilted]

This goes toward the point I’ve been driving at with my posts here and, more so, in many conversations I’ve had with friends and family about this case.

I actually don’t support this prosecution – i.e., I don’t think it should have been brung. And based on the evidence I’ve reviewed I wouldn’t have found him guilty. It seems I have a different understanding of the concept of proven beyond a reasonable doubt than the typical American jury does. I think we accept a much too low bar in that area.

My point to friends and family has consistently been what follows.

There’s so much misinformation out there about this case, as there is about so many things these days. And so much of it is to support this general narrative that the rules are being changed or ignored in order to get President Trump – that courts and prosecutors are doing things that are unfathomable.

But the reality is that there are fundamental problems with or judicial systems and our laws in general. We have so many laws, and so many of them are so vague, that we’ve all violated some of them. And through our law enforcement practices and the ways in which our judicial systems work, we routinely trample on people’s basic rights – due process and other rights. That’s especially evident when it comes to the War on Drugs which you refer to, but it’s true in other areas as well.

We have a system where government actors – e.g., prosecutors – have too much power and too many tools which can be used, far too often successfully, to go after anyone they’re motivated to go after. We aren’t a nation of laws, so to speak, we’re a nation of men deciding who they want to go after. It’s not about whether or not someone is a criminal; it’s about whether or not the powers that happen to be like them or what they do.

We can disagree whether President Trump is a victim here. But to the degree he is, it isn’t that he’s fallen victim to some new forces or dynamics, it’s that he’s fallen victim to the same kinds of things that have victimized countless people – disfavored targets – for many years.

We have these overly broad laws and insufficient due process protections because we tolerate them. And we tolerate them because we don’t care when other kinds of people are victimized by them. Indeed, for many of us, we kind of like that. It’s only when we – or people we care for or readily relate to – are victimized by such things that we become indignant. That’s when we notice; that’s when we scream bloody murder.

We don’t oppose such authoritarianism in principle, only in specific regards. We accept the trade off of leaving the tools of oppression lying around, even though they might be used against us, because we want them to be available to be used against others and because we consider it unlikely they’ll ever actually be used against us.

Well, now they’re being used against someone that many people in this country have great affection for – and in a way that makes those people feel as if the tools are being used against themselves. And there’s an intense visceral reaction to the seeming injustice.

My point has been that, instead of pretending that this is somehow some special newly invented kind of injustice, we should be honest that it’s just another flavor of what we’ve been allowing to go on for a long time. And our new awareness of it should motivate us to oppose the fundamental problems, not just this particular manifestation of them. That’s a respectable position to take. Making up and spreading BS about what’s happened here, in support of denial of our own hypocrisy, is not. But, alas, so many people are so deep in their denial that it’s seemingly impossible to get them to see the forest for the trees.

[Sarcastr0]

Not bad. If instead of special pleading Trump supporters went for systemic reforms, it'd be not only a less partisan working argument, it might even get things changed!

[ObviouslyNotSpam]

Yes, this was not my favorite Trump criminal prosecution, and I'm still not convinced it was a strong enough case to have been properly brought in the first place. Moreover, based on the convoluted theory of the case, I think the likelihood is that the jury wasn't convinced that the state had proven all the elements of the crime(s) beyond a reasonable doubt, and simply decided that Trump was a bad actor (they were right about that...) and convicted him accordingly.

But, that is the imperfect system we have; it wasn't invented to "get Trump" any more than it was invented to "get (Hunter) Biden". We also know that, despite the flood of fake tears, the Republicans are itching to engage in exactly the same "lawfare" against their enemies, just as soon as they get the chance. Timely article:

https://www.theguardian.com/us-news/article/2024/jun/02/trump-social-media-threats

The judicial system does need an overhaul. But the person to lead that effort is obviously not Donald J. Trump.

[Rev. Arthur L. Kirkland]

" the most liberal borough, of the most liberal city, of one of the most liberal States in the country"

"NY is the bluest of blue states. What did you expect?"

A world-class economy, particularly with respect to fields (law, medicine, finance, education, research, communications, accounting) that require brainpower rather than a shovel or a well.

A number of the world’s strongest research and teaching institutions.

As strong a collection of cultural amenities as one could find in the reality-based world.

Rather less drawling.

World-class entertainments.

A thriving artistic community.

A less superstitious, more educated, less backward, more diverse population.

More academic symposia and advanced degrees than revival meetings and 18-year-old pickup trucks.

Outstanding and trendsetting cuisine, although fewer militia gatherings and televangelists.

World-class medical facilities; relatively few faith healers and revival meetings.

[JoeFromtheBronx]

Come now. Surely, some jurisdiction in California is more left-wing. After all, they have Goodwin Liu, stopped from becoming federal appeals judge in part for allegedly being too mean and unjudicial (a bit of irony) during the Alito confirmation on its Supreme Court.

As to speed to allow voters Election Day clarity, now do the other three criminal cases. Or the U.S. Supreme Court when it slow walked Trump's financial cases after the House of Representatives asked them to speed it up & they were relevant to ongoing impeachment proceedings.

The Supreme Court in Trump's immunity case is going more slowly than that old lady walking to the phone in "Top Secret."

[Dr. Ed 2]

What happens if SCOTUS rules that Presidential immunity precludes him committing ANY Federal crime? He was President when he purportedly did this, and hence...

[David Nieporent]

1) Since even Trump didn’t even ask SCOTUS to rule that way, nothing.
2) Since immunity means that one can’t be prosecuted, not that one can’t/didn't commit a crime, nothing.
3) Since the only crime he is charged with is a state crime, nothing.

[Dr. Ed 2]

1: Murder is a state crime.
2: States have jurisdiction over extra-territorial murder by residents.
3: Biden is a Delaware Resident
4: Delaware could prosecute Biden for overseas drone strikes.

I think Presidential Immunity, if it exists, would extend to state crimes as well. And troubling as it is to say that the President is above the law, reality is that he is.

[David Nieporent]

1. True. Sometimes federal, but generally state.
2. False.
3. True.
4. False.

And nobody, not even Trump's lawyers, claim that presidential immunity extends to state crimes (though they may argue that states can't prosecute a sitting president, but must wait until he leaves office).

[Randal]

No, I think they are arguing that presidential immunity extends to state crimes, and that's why they want more than just assurances from the Solicitor General that the DoJ has good reasons not to prosecute former presidents abusively.

The immumity attaches to the act, after all, not the crime.

[David Nieporent]

Yeah, you're right. I said that badly. (But is that properly characterized as immunity or just an aspect of the supremacy clause?)

[ObviouslyNotSpam]

Wow. Someone else has seen that movie.

[NvEric]

Notice the vileness of many here who can't frame a picture let alone an argument in a court of law.

Thus, Steven Calabresi must be right in his thinking, which seems solid enough and worthwhile to pursue.

The more vile the response, the less brain usage.

[SRG2]

That boils down to, I dislike (the arguments of) the people who disagree with Calabrese, so he must be right.

[Dr. Ed 2]

The USAF have a saying:
"If they're shooting at you, it means that you are over the target."

If he was truly out in left field, he would be ignored.

[CJColucci]

Procedure not Calabresi's strong suit? In NY, a criminal appeal must be taken to the Appellate Division within 30 days of sentencing or certain other orders. NYCPL 450.10, 450.60, 460.10. Review by the Court of Appeals, NY's highest court, is not mandatory except in death penalty cases. The would-be appellant must get a certificate of leave to appeal from either an Appellate Division justice or a Court of Appeals judge. NYCPL 460.20. Only after leave is denied or leave is granted and the Court of Appeals acts is there anything for the Supremes to review, and that will take the better part of a year.
Steve, your local bar association has a list of resources where you can get the help you so obviously need. Look into it.

[Publius_2020]

The record in the trial court won't even be filed by November. But, as I note below, Calabresi isn't being genuine in this piece -- he fully understands that there is zero chance that the case will be ripe for SCT review before the end of the year, but he's just adding his seven cents to the pile of 'politics masquerading as law' articles that we now see.

[loki13]

Given the quality of his posts here, I think you are being overly generous in saying that Calabresi fully understands the procedural issues. Reading his recent posts has led me to question if something has happened to him given the tenor and carelessness of his legal analysis.

I would also add that as a general rule, law professors in general don't actually know that much about how litigation actually works. While they might be true experts in a particular legal doctrine, you shouldn't mistake that expertise with knowledge about how litigation proceeds.

[Dilan Esper]

The job of the court system is to try cases and fairly apply its procedures, not to game out what is the best way to have the “right” effect on the election. Trials are not a voter information service. I made this point when it was liberals insisting that trials must occur before Election Day; I make this same point now when its conservatives insisting that appeals must occur before Election Day.

At any rate, Prof. Calabresi’s Cohn argument is completely silly- the four scenarios in Cohn all involve cases that went up through the state court system to the state Supreme Court and received some determination on the merits, and then the only issue was review. Nobody doubts that once a federal issue is litigated through the New York court system and receives a final determination from the NY Court of Appeals, there may be jurisdiction for SCOTUS to grant cert on the issue. What people are arguing for (including Prof. Calabresi in his last post, where he had apparently forgotten about the restrictions on review of state court decisions) is to skip the normal process and go straight to SCOTUS (even though there’s no evidence that SCOTUS even wants any part of this case).

Once the trial court enters whatever the sentence is and hears motions such as for a new trial and to stay the sentence, former President Trump can bring an appeal to the Appellate Division. If the sentence is not stayed, I assume he could bring an emergency motion for stay in that court as well. His rights are fully protected. Heck, he may even win his appeals.

And there’s simply zero reason to skip all that, even if it were possible, just because the defendant is running for President.

[loki13]

Well put. No notes.

[David Nieporent]

I made this point when it was liberals insisting that trials must occur before Election Day;

I don't think that's quite right. There's a substantive reason to try him before election day, that doesn't involve voter information: if he's elected, it will then be impossible to try him at all.

[loki13]

I would agree, and add that procedurally, especially with the case in S.D. Fla., there is no reason that they should not have occurred prior to election day.

[Dilan Esper]

The difference is that's active stalling vs. simply the case taking the normal amount of time that cases take.

[Dilan Esper]

That's a good argument for prosecutors to push for it but a terrible argument for courts. The elections are just an extraneous event for courts; indeed, you can argue the other side that if he gets elected after imprisonment that's going to force courts to engage in some doctrinal innovation to habeas him out of prison (as we obviously can't have the President in prison).

[Ridgeway]

Does Cohn still stand for the broad-ish principles cited by Calabresi?

I am not an expert on this, but I thought there have been a lot of cases since 1975 regarding collateral attacks on state law convictions, pretty much all of which narrowed the defendant's ability to do so.

[ObviouslyNotSpam]

One thing's for sure: if the Supreme Court somehow magics up a justification for hearing a Trump appeal of this verdict before November, they won't need to fly any more fucking flags.

[Randal]

They already don’t need to fly flags. But also yes.

[MollyGodiva]

We have been told many times that it would be inappropriate to have election considerations in respect to the other three cases. Thus the people will know know if Trump is guilty of trying to overthrow the election or stealing classified documents before they vote. However suddenly the people have a need to know the outcome of this case?

[jslinner]

Quick, pull everything out of every account you have and donate it to Trump now!

[jslinner]

Quick, guys, pull everything out of every account you have and donate it to Trump now! Buy his NFTs, sneakers, and trading cards. If you have any money left, you are no TRUE patriot.

[caplane8119]

Professor Calabresi does not have a record of championing the rights of those found guilty by a jury in districts that skew heavily toward one political party and not the other. In 2020, Mr. Trump received roughly 25% of the votes cast in Manhattan. He was represented by able counsel, who played an active role in the jury selection process. It is likely that 3 or 4 of the jurors voted for Mr. Trump in 2016 and/or 2020. But not one of the jurors–including those who likely voted for him–found him not guilty on any of the 34 counts. Might Mr. Trump have fared better in a different borough or different states? Perhaps.

[Publius_2020]

This is a good 'bookend' piece to go with the Washington Post column about various inventive ways for the Senate to bang pots about Justice Alito's recusal. In the WaPo piece, all of the law is wrong or silly, but they get the politics right -- the pot-banging is political performance art, and it is going to continue.

Calabresi, on the other hand, gets the law right (no opinion expressed on his core 1A claim), but misses the politics and practical procedure. The reality is that the appeal in NY state won't even reach the filing of the record stage by November, much less a final determination on federal legal issues.

And the common thread is that neither author really cares. We've reached the point where lawyers write their own performance pieces, and the lay public is treated to the spectacle of lawyers telling them every day that up is down, and left is right. The public, of course, embraces what it likes with the enthusiasm that confirmation bias always brings.

[Dr. Ed 2]

There is already talk of moving the GOP convention to July 4th so that Trump is already the nominee when sentenced -- but what is the law on incarcerating someone who still has valid appeals pending? Particularly if irrevocable harm would occur?

If Trump is immediately jailed, or otherwise restricted from campaigning, could *that* be the basis of a Federal habeas cert petition to SCOTUS and could that go through the Rocket Docket?

The argument would be that the actual appeal is not ripe yet because of the pending state court appeals, but the issue of confinement *is* because of the time pressure of the election.

Or a completely different approach --- there is a growing cadre of Black males supporting Trump and there are Black men in the party organization, Allen West comes to immediate mind. Could someone like West bring a 15th Amendment suit?

The argument would be that Trump is arguably still innocent in that his appeals have not yet been exhausted, but incarcerating him (or even limiting his ability to campaign) would deny Black males the ability to hear his message and thus impair their right to vote.

[Ridgeway]

"If Trump is immediately jailed, or otherwise restricted from campaigning, could *that* be the basis of a Federal habeas cert petition to SCOTUS and could that go through the Rocket Docket?"

I don't know if there has ever been a single sentence that better screams "I am not a lawyer and am just talking out of my ass!!!" than this one.

Kudos!

[David Nieporent]

I don’t know if there has ever been a single sentence that better screams “I am not a lawyer and am just talking out of my ass!!!” than this one.

Wait until you read each of the rest of his posts!

[ObviouslyNotSpam]

Well, those actually scream more, "I'm a psychopath who ought to be locked up"...

[John F. Carr]

Most people have lives that would be disrupted by incarceration. The general rule is, when the jury returns a guilty verdict the judge can order the defendant jailed immediately, before sentencing, if the expected sentence includes incarceration.

I knew somebody who went to jail for a non-political crime. On the day the jury said guilty the judge sentenced him and he went away to jail. There was a mandatory minimum sentence, not a range of zero to decades as in Trump's case.

[JohnTheRevelator]

incarcerating him (or even limiting his ability to campaign) would deny Black males the ability to hear his message and thus impair their right to vote.

If nothing else, it would be glorious to see the "election interference" of preventing the public from hearing an allegation of infidelity be countered by a claim that a minority is being prevented from hearing a candidate. I'm not sure if either of those count as election interference under the law, but one of them is certainly a lot closer to it than the other.

[EscherEnigma]

Many people are incarcerated while going through their first trial. Almost everyone that's convicted and sentenced to jail time, and then decides to appeal, goes to jail while appealing.

If this is suddenly some great burden or injustice, then there are a lot more people affected then just Trump, including many who probably have much stronger cases.

[David Nieporent]

If this is suddenly some great burden or injustice, then there are a lot more people affected then just Trump, including many who probably have much stronger cases.

More specifically, the same people ranting about Trump also rant about "woke Soros prosecutors" who fail to jail people who haven't yet been convicted.

[JohnTheRevelator]

it would be unconscionable for the New York State appellate courts to do anything other than to expedite U.S. Supreme Court review

Well then we can be sure they'll slow-walk it to oblivion. These people don't care about the rule of law or anyone's rights but their own. They don't even care about appearances at this point. Whatever the worst thing you can imagine them doing, is what they're going to do.

[loki13]

Assuming that everyone has the same craven partisan beliefs that you do is the first error most people make.

Not all judges are perfect, but the majority of them try to do the right thing by the law as they understand it.

[Balisane]

But if it was a homosexual being imprisoned for spreading HIV to little boys, they'd fast track.

[Ben of Houston]

I might not agree with your reasoning on the constitutionality. However, I do think we need a fast track to the Supremes, and most importantly, they need to rule unanimously. In fact, I want Jackson or Sotomayer to write the opinion.

[Jason Cavanaugh]

Why should SCOTUS fast-track anything for Trump? Haven't you people been complaining about how Trump's been treated differently than everyone else?

Perhaps you've all been full of shit and really meant that he should be treated as though he's special and somehow above the law all this time.

[Ben of Houston]

This entire prosecution is election interference and you know it.

We can either give Trump the same treatment or we can give him expedited treatment under a microscope. We cannot have it both ways only when it favors one side

[Jason Cavanaugh]

LOL, no.

Remember who was "unindicted co-conspirator #1?" This case is just taking out the rest of the trash.

Were the members of the grand jury secretly paid by the Biden campaign? How about the 12 members of the jury who unanimously decided Trump was guilty after hearing the evidence?

Idiot.

[Randal]

As you lot are especially wont to point out, Trump could’ve avoided this whole mess by not engaging in criminal activity.

But I’m with you Ben, we should be more forgiving of criminal behavior than we are… at least until we fix the laws to clearer, so that prosecutors have less discretion.

But until then.... Trump is being treated the same as everyone else. All prosections are politically motivated. Why do you think the white kids get a warning when they shoplift from the surburban outlet mall while the Black kid gets charged for shoplifting downtown? Politics.

[not guilty]

"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."

“William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I'd cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

Robert Bolt, A Man for All Seasons: A Play in Two Acts

I wonder if Professor Calabresi has ever litigated an appeal from a criminal conviction. He identifies no provision of New York law that would permit Donald Trump to pursue piecemeal appeals.

Trump will not be sentenced until mid-July at the earliest. There may be posttrial motions in the trial court. He would need to appeal first to the intermediate appellate court. Preparation and transmission of the trial record to the appellate court should take months.

Calabresi has previously called for portions of the decision in Buckley v. Valeo, 424 U.S. 1 (1976), to be modified or overruled. Did Trump present that issue to the trial court? (The trial court obviously has no authority to overrule a SCOTUS decision, but it is necessary for a litigant to preserve a federal issue by presenting it at every level of state court proceedings per Supreme Court Rule 14(1)(g)(i).)