EXECUTIVE CRIME TIME

Does disgraced former President Trump have a shot of overturning his criminal conviction on appeal? Some unlikely voices tell What A Day he just might.

• Plenty of legal experts say Trump’s table-pounding vow to appeal his criminal conviction on 34 counts of falsifying documents faces long odds. Only about one-in-ten such challenges typically achieve any kind of success. Barbara McQuade, Detroit’s former top federal prosecutor, told What A Day Trump is “unlikely” to win on appeal, and that his conviction will probably stick.

• But other legal wonks think Trump has a pretty good shot — and they’re not just blind MAGA loyalists. Ty Cobb was Trump’s White House lawyer during the Russia investigation, but has since emerged as a high-profile Trump critic. He formally urged the Supreme Court not to hand Trump full immunity, and slammed the judge overseeing Trump’s Florida case for showing “palpable bias” in Trump’s favor. But Cobb told What A Day he thinks Trump’s odds of reversing his conviction on appeal are only slightly worse than a coin-toss — approximately 35-40 percent. Cobb doesn’t think Trump is innocent, but rather, that the jury instructions handed down by Judge Juan Merchan in this case raise a serious problem.

• The instructions were too convoluted, according to Cobb. In order to charge Trump with felonies, prosecutors had to prove he falsified business records in order to commit another crime — in this case, to violate New York election laws. But there were three different ways Trump might have done that, and the judge told the jury they didn’t all have to pick the same one. Cobb thinks Trump’s team could argue the jury was confused. The instructions amounted to a “hodgepodge of crimes,” Cobb said. “The jury did its duty and did an excellent job with what it was given. But two things can be true; the jury can have gotten it right as they were instructed, but they may have been instructed in a way that was unconstitutional, which I think is a compelling argument.”

Cobb isn’t alone in his thinking.

• An official in President Biden’s Department of Justice told What A Day he agrees with Cobb’s view. “It’s a legitimate question” for the defense “to ask which theory [the jury] convicted on,” said the official, a former federal prosecutor who asked not to be named because he isn’t authorized to speak publicly about this case. “Even after the instructions, was there still confusion as to which legal theory upon which they convicted? That is absolutely something an appellate court looks at.” Neither this official nor the DOJ had anything to do with Trump’s case in New York, which was brought by Manhattan District Attorney Alvin Bragg.

• Trump’s felon status is almost certain to remain on Election Day in November, even if he later succeeds in his appeal. And there are still plenty of unknowns, including what kind of sentence Trump will receive on July 11. That hearing will take place just a few days before he officially becomes the GOP nominee at the Republican National Convention in Milwaukee. No one can say what the courts will do if Trump wins the presidency with a prison sentence hanging over him, or how that might impact his pending appeal.

Whatever happens next, this is all uncharted territory.