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Trump Should File Emergency Petition to Supreme Court to Halt the Sentencing in His NY Case

Supreme Court

The most egregious violations in the New York conviction of former President Donald Trump were federal Constitutional “due process” violations that states are bound to follow. New York did not.

On this basis, Trump should consider filing an emergency petition to the U.S. Supreme Court seeking a stay to halt imposition of the sentencing currently scheduled for July 11th. In the alternative, his appellate lawyers may decide to pursue a broader petition after that date.

Pursuant to the “All-Writs Act”, federal courts have historically had the power to stay or enjoin proceedings in state courts by common law writs or writs of certiorari —an order from a superior court to an inferior court. In 1948, Congress spelled out exceptions to the otherwise independent authority of state courts (28 USC 2283), in part, to protect federal rights that are guaranteed in the Constitution and laws of the United States.

The Manhattan District attorney, Alvin Bragg, prosecuted Trump on a convoluted legal theory entirely dependent on the commission of a secondary or underlying crime that was never specifically identified. That is, he supposedly falsified business records to commit or conceal another crime that might have been one of several possible “unlawful means” crimes —a federal campaign violation or creation of additional false records or a tax law violation.

Astonishingly, jurors were then allowed to pick or choose for themselves with little guidance. Judge Juan Merchan should never have allowed it. No fair or competent judge would.

Under the Sixth Amendment, all defendants have a right to be informed of the precise “nature and causes of the accusations” against them so that they can properly defend themselves at trial. This did not happen. During the pendency of the trial, the defense never knew what alleged crimes to defend against.

Judge Merchan then compounded this shocking due process violation by instructing the jurors that they did not have to agree unanimously on a singular unlawful act (or secondary crime, if you will). They could freely disagree while still convicting the accused.

The judge’s instructions were defective and wrong. He effectively tore up a fundamental right embedded in Constitutional principles that are derived from the Sixth and Seventh Amendments and made applicable to the states through the Due Process clause of the Fourteenth Amendment.

The U.S. Supreme Court has previously held that unanimity extends to all key issues, including every necessary element of a primary crime and, in this case, the establishment of a secondary crime.

While the Supreme Court rarely accepts such emergency injunctions or writs at this early stage, this case is unique. The defendant is the de facto nominee for President of the United States. Imposing a sentence on him a scant four months before the general election will cause him —and potential voters throughout the nation— irreparable harm by unduly influencing the election that arose from these flagrant due process violations.

The same judge who sanctioned the violations will soon levy a sentence that may well further restrict —beyond the current gag order— Trump’s ability to campaign for the highest office. This not only infringes severely on his free speech rights but on the free speech rights of voters to hear what he has to say. The First Amendment protects both speaker and listener.

On this basis, Trump’s lawyers must file an emergency petition directly to the U.S. Supreme Court. The normal appellate process that may take months or even years to perfect is not a viable option.

Exigent circumstances merit extraordinary relief by the nation’s highest court.