Trump may raise unspecified ‘other’ crime on appeal

The “other” crime factor in Donald Trump‘s hush money case was a source of scrutiny throughout his trial, and now that the former president has been convicted, legal experts say it could serve as a basis for his appeal.

Trump vowed Friday he would bring the appeal on “many different” grounds, and one could be the lack of specificity surrounding that other crime — the unspecified offense that prosecutors said Trump committed while falsifying documents, effectively bumping expired misdemeanors up to felony charges.

“[The jurors] did not have to be unanimous as to what that other crime was,” John Malcolm, a former federal prosecutor, told Fox News. “This will be one of the many issues that Trump’s legal team will raise on appeal.”

Trump was convicted of falsifying business records in the first degree, but the conviction meant the jury also had to have found Trump intended to commit “another crime.” The jury did not have to say as part of its verdict what that other crime was because the judge decided not to require unanimity on that point.

Prosecutors eventually said that the other crime was that Trump intended to violate New York’s election law by attempting to influence the 2016 election through “unlawful means,” but they gave three different options for what those means could have been.

When giving jury instructions, Judge Juan Merchan told jurors they “need not be unanimous” about what the unlawful means were.

“You may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws,” the jury instructions read.

Judge Michael Obus, who presided over criminal cases in Manhattan for about 27 years, said one issue Trump could raise could be that one of the underlying crimes jurors could choose to convict him of was a federal crime, not a state one.

“Since one of the alternatives was this federal election violation, that’s the kind of argument that we might see on appeal, [an] argument being that New York courts don’t have the authority to prosecute a case with that being the object crime, because it’s a federal crime,” Obus told reporters on Friday.

Elie Honig, a former assistant U.S. attorney in New York, wrote in a scathing op-ed that appeared in New York magazine on Friday that Manhattan District Attorney Alvin Bragg “inexcusably” did not specify what the “unlawful means” were, opening the door for an appeal.

“[Trump is] certain to contest the inventive charges constructed by the DA,” Honig wrote. “I won’t go so far as to say an appeals court is likely to overturn a conviction — New York law is broad and hazy enough to (potentially) allow such machinations — but he’s going to have a decent shot at a reversal.”

Norm Eisen, a legal analyst who led congressional Democrats’ first impeachment against Trump, was less open to the idea of the “other” crime controversy being a successful appeal avenue for Trump. Eisen told reporters that he viewed the structure of Bragg’s case as similar to that of thousands of other felony falsifying business records cases.

“It’s been litigated over and over again,” Eisen said. “There’s no requirement for the jury to agree or even say what [the] other crime is.”

He added that it was nevertheless “abundantly clear” what the other crime was.

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“It was conspiring to unlawfully influence an election. There were multiple unlawful means that were charged, and so I just think that it’s false that there was any lack of clarity about that,” Eisen said. “I think we’ll find on appeal that these issues are given the back of the hand by the New York appellate courts.”

Trump is scheduled to be sentenced July 11. He can file his notice of appeal within 30 days of his sentencing.