Donald Trump’s Georgia Prosecution Grinds to a Halt

Welcome back to The Collision. Has it really only been a week since Donald Trump was convicted in his Manhattan hush money case? Today we’ll examine his potential avenues for appeal. Before that, though, we’ll take a quick retrospective of the Fulton County, Georgia, election interference case that now appears to be delayed indefinitely. 

And we’ll kick the Docket off with some updates from another high-profile trial where politics and the law have collided.

The Docket

• Hunter Biden’s federal trial in Delaware began with jury selection on Monday and moved swiftly to opening arguments and the prosecution’s case. The son of President Joe Biden is facing three felony gun charges, including lying to a licensed gun seller and on a federal application form about his drug use, in addition to possession of that illegally obtained firearm. The prosecution’s case is simple: Attorneys for special counsel David Weiss argue that there is sufficient evidence to prove that when Hunter purchased a firearm in October 2018, he knowingly lied about his ongoing drug use. The defense is arguing the prosecution cannot prove beyond a reasonable doubt that Hunter knew he was lying about his drug use without definitive proof that he was using drugs at the exact moments he made the gun purchase.
• Federal prosecutors opened their case on Tuesday by playing audio excerpts from Hunter’s own audiobook narration of his 2021 memoir, Beautiful Things. The president’s son details his yearslong addiction to crack cocaine, including during the time that he purchased the gun. On Wednesday, both Hunter’s ex-wife and an ex-girlfriend testified about his drug addiction, with the latter witness, Zoe Kestan, telling the jury that she witnessed Hunter smoking crack in late September 2018, just weeks before his gun purchase. In addition, the gun store clerk where Hunter bought the revolver in question testified that he watched Hunter check the “no” box on the required federal form. Hunter’s defense attorney, Abbe Lowell, has pushed back on the prosecution’s case by emphasizing that Hunter was in recovery from his drug addiction at the time of his purchase and was therefore not lying about his drug use.
• Speaking of guns and the law, CNN reports that the New York City Police Department is “preparing to revoke former President Donald Trump’s license to carry a gun” in the wake of his conviction last week on 34 felony counts of falsifying business records. The NYPD had already suspended Trump’s firearms license following his indictment.
• In Trump’s classified documents case in South Florida, Judge Aileen Cannon granted a hearing for oral arguments after the defense challenged the constitutionality of special counsel Jack Smith’s prosecution. Cannon’s order allows three non-party attorneys representing amicus briefs—two lawyers with separate arguments arguing against the constitutionality of Smith’s appointment, and one lawyer arguing for its constitutionality—to participate in the June 21 hearing. It’s the latest pretrial maneuvering to make a trial before November’s election even less likely.

Goodbye, For Now, to Georgia

The Fulton County case against Donald Trump and several co-defendants isn’t entirely dead—it’s only mostly dead. At least before this November’s election. 

The Georgia Court of Appeals issued an order Wednesday staying forward progress on the case until the court issues its ruling on an appeal regarding Fulton County District Attorney Fani Willis’ continued prosecution of the case. Go back and read The Collision’s coverage of the whole sordid affair, but to sum it up: A special prosecutor hired by Willis to work the Trump case (and receive a healthy paycheck) also happened to be her onetime romantic partner. The revelation was embarrassing, damaging, and potentially disqualifying for Willis, and lawyers for one of Trump’s co-defendants moved to dismiss the entire case or at least disqualify Willis.

Back in March, the superior court judge, Scott McAfee, ruled against the motion to dismiss the case entirely and partially ruled against disqualifying Willis’ case.* McAfee’s order required that either Willis or her former lover, Nathan Wade, resign. Wade took the fall, and Willis took an admonishment from McAfee, but the case could move on. 

Or could it? As we noted at the time:

The result is everything Trump could want. 

He gets to complain that Willis wasn’t removed and yet faces no threat of a new prosecutor—without the partisan affiliation or personal baggage that now hangs over Willis—taking the case over quickly. Instead, Trump will be able to appeal the judge’s decision not to remove Willis. So the whole sideshow remains relevant in the media, and the case could be further delayed.

And further delayed it surely is. The appeals court’s order puts a pause on all other work on the case until it can rule on the defense’s appeal of McAfee’s March decision. If the court decides to hear oral arguments—which, a court spokeswoman told The Collision, is not a guarantee—they are tentatively scheduled for October 4. And even after those potential arguments, the court doesn’t have to rule on the appeal until March 2025. Until then, not only is a trial on hold, but McAfee potentially must pause any work through other pretrial motions on the case. Andrew Fleischman, an Atlanta-area defense attorney who has observed and commented on this case, wrote on X that this stay on proceedings pending the appeal is standard for the state’s court of appeals.

Here’s the best-case scenario for Willis: Trump loses the November election, McAfee’s order is upheld, the trial can get back on track sometime in the spring or summer of 2025, and she successfully wins convictions. But as we also pointed out back when McAfee issued his ruling, a guilty verdict in this case “would now come with an asterisk.” 

And that’s the best-case scenario. What’s also possible is that the appeals court overturns McAfee’s ruling, disqualifying Willis and sending the case through the long and arduous process of assigning a new prosecutor. The current delay by the appeals process would look relatively quick compared to the delay involved in finding a new prosecutor, allowing that prosecutor to review all the evidence, and only then proceeding with the case.

And of course, Trump could win the presidency in November. He’s the favorite at this point, according to public polling. No matter what happens at the Court of Appeals in Georgia, another four years for Trump in the White House would be the ultimate delay for this state prosecution.

Let’s Take You to Appeal Avenue

The most important issues in Donald Trump’s criminal prosecutions are prudential, not legal. It is a problem that so many Americans believe that Trump (and Hunter Biden) were only criminally charged because of who they are and not because of what they did. That is what Attorney General (and future Supreme Court justice) Robert Jackson warned against in 1940 when he described “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” 

But selective prosecution arguments are rarely successful grounds for appeal. The Supreme Court has held that prosecutors have incredibly wide latitude to decide which cases to bring. As the court’s 1978 opinion in Bordenkircher v. Hayes held, “So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” 

To win a claim of selective prosecution in the appeal of his Manhattan conviction, Trump would be required to show that other similarly situated people were not prosecuted. But the Manhattan district attorney’s office has prosecuted other people for falsifying business records, and Alvin Bragg’s team will argue that Trump’s crime was uniquely invidious because it sought to influence a presidential election. This is not going to be a productive line of argument for Team Trump. 

Another possible appeal path is to argue that the judge was biased and should have recused himself. Juan Merchan, the presiding judge, donated $35 to Democrats in 2020, including a $15 contribution to Joe Biden. Such a contribution undoubtedly violated New York’s ethics rules that prohibit judges from “soliciting funds for, paying an assessment to, or making a contribution to a political organization or candidate.” But the New York Advisory Committee on Judicial Ethics held that Merchan’s impartiality could not “reasonably be questioned” based on the “de minimis political contributions made more than two years ago.” 

Furthermore, the Supreme Court has held that the Constitution only requires judges to recuse themselves when there is evidence of actual bias, when the judge has an economic interest in the outcome of the case, or when “extreme facts” create a “probability of bias.” One example might be when an elected judge’s campaign has been substantially bankrolled by a specific litigant with a case before that court. Again, Merchan’s actions simply do not rise anywhere close to the level of a constitutional due-process violation with the facts here. 

Now we get to substance. The most likely grounds for a successful appeal for any criminal defendant are the jury instructions. Here we have 55 pages of instructions in which the judge is trying to translate the law in lay terms to the jury before it begins deliberations. Get any part of that translation wrong, or leave the jury with a slightly different impression of what it needs to find, and the defendant gets a new trial. Jury instructions are a gold mine for criminal appellate lawyers. 

But unlike the many thousands of criminal defendants who go through the system every year and find potential errors in their jury instructions, Trump’s prosecution was under a microscope from start to finish. Maybe Merchan got the law wrong in his instructions, but that’s far more likely to happen to the judges on other criminal cases who may be overworked or distracted. 

The best appellate argument for Trump, however, may not be that Merchan mistranslated the law for the jury but that even a correct interpretation of the law violated his right to a fair trial. This is the argument put forth by David B. Rivkin Jr. and Elizabeth Price Foley in the Wall Street Journal this week.

New York courts have concluded that the accused need not be convicted of the other crime since an “intent to commit” it is sufficient to satisfy the statute. But because that intent is, in the words of Winship, “a fact necessary to constitute the crime,” it is an element of felony falsification. Due process requires that the defendant receive timely notice of the other crime he allegedly intended to commit. It also requires that he have opportunity to defend against that accusation and that prosecutors prove beyond a reasonable doubt his intent to commit it.

In other words, the New York statute as interpreted by New York courts doesn’t require the prosecution to prove that Donald Trump committed the underlying crime, it didn’t require the jury to agree on what that crime was, nor did it even require the prosecution to tell Trump what underlying crime he was being accused of committing. This, they argue, violates the constitutional guarantee of due process. 

This argument may well be right, but it’s going to be a long time until Trump can make it in full. First, he will have to go to an intermediate New York appellate court that is bound to apply New York precedent. Then he’ll go to New York’s highest state court, which is also likely to follow its own precedent. Only then can Trump try to get to federal court—in this case, the Supreme Court. And, as we know, the Supreme Court can decide not to take his case without comment. It’s impossible to see all this happening before November. 

And if Trump loses the election narrowly, courts have another reason not to overturn his conviction. To do so would acknowledge that he shouldn’t have been convicted in the first place and that this failure of the criminal justice system influenced the outcome of a presidential election. If he isn’t sentenced to prison time, courts might decide it isn’t worth the turmoil for the country to ask what might have been. 

Verbatim

“I am the President, but I am also a Dad. As the President, I don’t and won’t comment on pending federal cases, but as a Dad, I have boundless love for my son, confidence in him, and respect for his strength.”

—Excerpt from a statement by President Joe Biden as his son Hunter’s criminal trial began, June 3, 2024

Correction, June 6, 2024: This story has been updated to correct Scott McAfee’s title. He is a superior court judge.