Barr, McConnell say Trump conviction will be overturned. Legal experts are doubtful
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Two of Kentucky’s leading Republicans have expressed confidence that Donald Trump’s hush money conviction in New York will be overturned on appeal.
Legal analysts are far more doubtful, and the statistics bear out why.
In the evening hours after 12 jurors delivered their historic verdict against a former president, Mitch McConnell posted that he expects the felony conviction to be overturned.
Congressman Andy Barr echoed the sentiment in an radio interview with Larry Glover on WVLK-AM the following afternoon.
“If we really want democracy, then we need to like actually have prosecutors who are focused on doing their real job, which is to prosecute violent criminals and illegal migrants who are breaking the law, instead of just going after political opponents, wasting the taxpayers’ resources on a prosecution that will be appealed, and I predict, appealed successfully,” Barr told Glover.
The reality is that appellate courts are generally deferential to jury verdicts.
One study assembled by the Bureau of Justice Statistics found that criminal appeals have only about a 12% success rate.
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“Jury verdicts rarely get overturned, and most accounts I’ve read say that trial lawyers think [Judge Juan Manuel] Merchan did a pretty good job — little room for reversible error,” said Russell Wheeler, a senior fellow of Governance Studies at the Brookings Institution.
Kevin M. Clermont, a Cornell Law School professor who specializes in litigation procedure, predicted the chances of a successful appeal being “very small.”
“If you look at the actual case, there is no decent ground for reversal,” Clermont said. “And if you listen to interviews with [Trump attorney Todd] Blanche, he seems fixated on the most hopeless issues.”
Barr, an attorney, cited what he called Merchan’s mismanagement of the jury, the exclusion of exculpatory evidence and the lack of fairness of the New York venue as reasons the Trump defense has a robust case for appeal.
But Donald Ayer, a former U.S. deputy attorney general under President George H.W. Bush and senior adviser at the Campaign Legal Center, said he has not seen anything that seems like a powerful argument for reversal.
“The venue motion based on prejudice seems like a non-starter,” Ayer said.
Trump’s defense attorneys have already pledged to “speedily appeal” the outcome in New York appellate courts and “all the way up to the U.S. Supreme Court if necessary.”
That process will take months.
Even if New York’s Appellate Divisions prioritize the case with urgency because of the presidential election, it’s unlikely to be resolved before November, according to Abbe Smith, a criminal defense attorney and professor at Georgetown Law.
Trump has complained if the appeal process doesn’t move quickly, it shows the judiciary is “really interfering with the election.”
Similarly, Barr declared the Trump conviction to be “the ultimate example of election interference.”
“Why would you want to be deprived of the ability to vote against him?” Barr complained, citing constituents who oppose Trump. “And yet that is exactly what the Democrats and these prosecutors are trying to do. They’re trying to deny the American people the choice that they deserve.”
But Trump’s criminal conviction — even if it is upheld — won’t strip anyone’s ability to vote for or against him in November. There’s no existing law that bars a felon from being a presidential nominee.
New York even allows felons to vote, as long as they’re not incarcerated.
Of course, with Trump, never say never.
Even former Manhattan federal prosecutor Preet Bharara acknowledged there’s always a chance of a black swan event.
“I think the great likelihood is it will not be reversed … But having been doing this for a long time, I have been surprised before how a high court…looks at an issue that most of us thought, criminal practitioners thought, was decided and right,” Bharara said on a podcast this week.
Wheeler said Republicans are brashly overstating Trump’s likelihood of a successful appeal because it’s good politics.
“Trump supporters can’t say the opposite, and, if the appellate courts don’t overturn the conviction, they can point to it as more proof of a broken, politicized judicial system,” Wheeler said.
