Why the Supreme Court Will Not Be Rescuing Trump in New York Anytime Soon (2024)

On Thursday, Donald Trump was convicted of 34 felony counts in New York for unlawfully trying to influence the 2016 presidential election that he won through hush money payments to Stormy Daniels, then falsifying business records to cover it up. Just Security has been one of the preeminent sources for information on the case throughout the six-week trial and in the months before that. Last week on Amicus, I spoke with the founding co–editor in chief of Just Security, Ryan Goodman, also a New York University professor, about the historic criminal conviction, its fallout, and its next steps. The following transcript has been edited and condensed for clarity. To listen to thefull episode of Amicus, joinSlate Plus.

Dahlia Lithwick: I want to ask you about the appeal because [Donald Trump and his team have] already said they’re going to appeal. We’re also already hearing that the appeal may be that this was a bad venue, he needed a different venue,the nature of Stormy Daniels’ testimony was too inflammatory, and that very complicated sort of decision-tree theory of the case itself.

What am I missing in terms of what you think the big arguments on appeal will be, with the understanding that it has to be that Justice Juan Merchan made an error? And then I wonder if there’s any merit to any of this, or is this just another run-out-the-clock maneuver?

Ryan Goodman: The bottom line is, I don’t see any merit. I don’t know what they could actually hang their hat on for an appeal that’s going to work. But at the same time, I think that the smart legal move is that they need to appeal. His lawyers would not be representing him well if they do not appeal. They should try.

That said, Justice Merchan really did lean over in Trump’s direction, time and again. I think they’re in trouble on all sorts of things. During the Stormy Daniels testimony, they had multiple objections. What did Justice Merchan do? He sustained their objections. There were other parts of her testimony that Justice Merchan said to them, “I was surprised you didn’t object.” If you don’t object, you can’t really preserve that for appeal. So I think they’re in deep trouble on that one.

The back-and-forth that Trump’s lawyers had with Justice Merchan on the jury instructions, they also seemed to concede a lot to him there. They said, “Oh, Judge, well, we know that this is normal and standard, so within your discretion we’re asking you to do X or Y.” But that’s another instance where he’s not going to be overturned for abuse of discretion. What he did was extraordinarily standard practice in New York.

The only wild card I can think of is the highly conservative U.S. Supreme Court, which hardly ever takes these kinds of cases. But with a former president, a major party political candidate, maybe they will take this case. And then what do they do? Maybe they do articulate a different view of what it means to not have unanimity on the methods and means of a criminal offense. That’s just me trying to imagine what’s possible there. But that’s another reason why his defense team should appeal, because then they can finally get to a venue that might be very favorable to them.

As we’re taping, it’s being reported that Mike Johnson is asking the Supreme Court to “step in”—I guess to just, I don’t know, some interlocutory cha-cha to overturn the verdict right now.

“I know many of them personally,” he says of the justices. “I think they’re deeply concerned about that, as we are.” It feels like it dovetails with Trump promptly congratulating Justice Samuel Alito on not recusing in the two Jan. 6 cases.

There does seem to be this sense, which is: Dude!I placed these three justices on the court for this moment, which is to exculpate me! I find it hard to count to four, much less five, justices who want to step in at this stage of the game, but I wonder how much they genuinely think that, at the end of the day, they have the Supreme Court?

Their problem, I suppose, is, in large respect, if Donald Trump loses the election, then it’s a Supreme Court that doesn’t have a vested interest in him as much. And that’s probably when this is going to come about, once all the appeals have been exhausted in the New York state court system.

But just to also kind of bounce off of what you had just mentioned, I do think that’s another very serious danger point we’ve gotten into as a country. I think the lights are flashing red. The way in which we as a country are seeing not just Donald Trump saying “This is all rigged and the judge is corrupt,” etc.,but all of his surrogates who have appeared at the Manhattan courthouse to say the exact same thing and the speaker of the House saying the same thing is very worrisome for the country. I mean, that is the Jim Jordan weaponization of government conspiracy theory. It’s the Steve Bannon “Tear It All Down” approach. And it’s not just Donald Trump and Steve Bannon. It’s the speaker of the House, and there’s a bunch of senators like Ted Cruz, who has a law degree and would obviously know better, J.D. Vance, and many others.

Marco Rubio, right?

People who know exactly what they’re doing, and they haven’t drunk the Kool-Aid. They’re not, I don’t think, consumers of the disinformation. They just are doing it for crass political reasons and the like, and that’s enormously dangerous.

This was a unanimous jury, a cross section of Manhattanites, some of them coming from out of state before they came to Manhattan: Ohio, Oregon, California … someone who consumes Trump on Truth Social or maybe through X …

This is the way the system is supposed to work. The system isn’t rigged. Right now the sitting president’s son is being prosecuted on multiple charges, even to the point that some would think that the Justice Department is leaning over too far in the direction of prosecuting him—but that’s what they’re doing.

So I think we’re in a dangerous place. One of the pieces that it reminds me of is the presidential immunity case in which Justice Alito is saying to the Justice Department, “Well, you know, you all can indict a ham sandwich”—just tearing down the idea that there’s any institutional independence in the DOJ. I thought that was really a remarkable thing for a Supreme Court justice to be doing as well.

Pam Karlan made exactly that point. The sort of overt Wink, wink, we all know what goes on at the Justice Department felt like crossing a line that I had not seen crossed.

And I think the point you’re making is, there is a difference between saying the election is stolen, that the architecture of voting is corruptible, and saying that [of] the entire Justice Department, the Biden administration, the district attorney who does not work for the Biden administration, these randomly selected 12 jurors and alternates, every witness …That is, by huge orders of magnitude, calling institutions into question. And I think that it’s easy to miss that move. It’s easy to miss the move from I don’t like the guy who counts ballots at the library to Every single facet of American governance is in the tank for Joe Biden and stealing my liberty. I think that it happens on X and on cable news and so you don’t necessarily perceive that move. It is a chilling move to say: There is no rule of law in this country. If it could happen to Trump, it could happen to you.

I’ve talked quite a bit with a colleague of mine, Tom Joscelyn, who was the principal drafter of the Jan. 6 final report from the Select Committee. And I’ve asked him questions about what he thinks the threat assessment is of political violence in the country. And one of the answers is, it’s difficult to say because Donald Trump, as we saw from his Dec. 19 tweet to Jan. 6, can be such a catalyst. So it’s not just what is the baseline probability or likelihood of things going off the rails. It’s also that he can galvanize action like that.

And that’s what we just saw. It’s happened so fast in the last few weeks and outside that Manhattan courthouse with these press statements and, now, in the aftermath of the verdict. So that’s why the lights are flashing red, and it’s a deep concern.