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If it happened now, an emergency appeal to the US Supreme Court would likely quickly result in Trump being freed.
I think you're right, but I'm very curious as to what theory they would use to overturn it if they couldn't grasp at some idiosyncratic procedural glitch to spare themselves from having to confront the core question.
I've been a fan of the following theory. Donald Trump could not have entered into a quid pro quo arrangement (trading money for official acts) with Donald Trump by using his own money to pay for his own expense (regardless of whether the FEC's interpretation of 'private use' holds, though this would be a perfectly fine alternate theory), just because he used an intermediary for the transaction. Since the underlying crime referenced by the conviction is a federal crime, there is a substantial federal question, and prior Supreme Court precedent has established that the federal statutes in question can only withstand First Amendment scrutiny to the extent that they are interpreted in a tailored fashion so as to only address quid pro pro or the appearance thereof. Vacate and remand the question of whether the jury instructions were such that they can sustain the conviction, given that the federal crime alleged is actually not a crime.
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Many easy ones.
Jury verdict has to be unanimous. The idea that the key can pick and choose in a case that is not mallum in se is prohibited under the due process regime.
Federal preemption — congress vested sole authority in DOJ and FEC to enforce FECA because there was a strong interest in a uniform application of the law (in part because it conflicts with the first amendment and in part because it is a federal election). The state can’t use this federal law as a predicate because of preemption.
They could say the judge gave the wrong instructions not explaining FECA well (including botching the willfulness standard).
Evidence was obtained that the recent ruling likely says was inappropriately obtained.
These are probably the most straightforward at the scotus level but there are more.
But I’m not sure it goes to scotus. Trump’s team can pick an appellate judge to immediately hear an appeal to stay the order. There are many reasons to junk this case. I think the NY appellate stays any jail sentence immediately.
Yeah, all fine, but I am thinking of those as idiosyncratic procedural glitches. I mean, suppose that the state convicted him of some dumb white collar crime that he was definitely guilty of and tried to jail him via impeccable process. Obviously it's untenable for an elected president to be jailed by New York State. But what theory would the Supreme Court use to prevent it? Straight-up vertical separation of powers? It would be fun to find out.
If jailed legitimately and elected, then i believe the court would say that because the constitution requires the president to take care that the laws are faithfully executed and doing so is incompatible with being jailed, the supremacy clause tolls the jail time while the president is in office.
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