Arthur Fergenson, who previously served as a judicial clerk for the late Chief Supreme Court Justice Warren Burger, explained that former President Donald Trump can immediately petition the Supreme Court to appeal a potential guilty verdict in the New York trial if necessary.
“The US Supreme Court can act by its statutory writs of certiorari to take a case from a lower appellate court, and the Court also has a host of other processes, often called common law writs,” Fergenson told Mark Levin. “I became acquainted with these common law writs when IBM sought review of a discovery order by a vindictive federal judge when I was clerking for Chief Justice Warren Burger.
“A total of six petitions were filed; all were denied, and rarely are any common law writs ever issued by the Supreme Court, but there are, nonetheless, multiple ways to offer the Supreme Court an opportunity to forthwith review a conviction by a rogue court, as would be the case here,” he continued.
The longtime SCOTUS clerk pointed out that Manhattan District Attorney Alvin Bragg has not identified an underlying crime. Bragg used COVID-era statutes to elevate what would typically be misdemeanor bookkeeping charges to felonies. He then replicated the same charge 34 times, resulting in 34 felony counts and a maximum potential prison sentence of 136 years. In order for the crime to be classified as a felony, the alleged act must have been committed in furtherance of another crime, something Bragg has yet to identify.
“The principle ground I would rely upon is the denial of due process by not informing Donald Trump of the underlying federal crime he was alleged to have committed—the predicate crime that NY law requires to prove the NY crime. That is a kangaroo court: to try someone for a crime that they are not informed of is as serious a breach of due process rights as we can possibly imagine,” Fergenson said.
“The timing of the trial and the blatant denial of fundamental rights can only be explained by an effort to interfere with the fair conduct of a presidential election, thereby, in effect, denying the American people the right to a Republican Government,” he added. Fergenson, described by Levin as “one of the smartest lawyers I know,” argued that the Supreme Court should act quickly if Trump is convicted.
“The Supreme Court warned that Bush v. Gore not be relied on as a precedent—on the merits. But it can and should be relied upon as the Supreme Court acting to preserve American democracy from an imminent threat. Consistent with that is the refusal of the Supreme Court to grant expedited review to the immunity controversy at the request of federal prosecutor Jack Smith,” he said.
“The NY trial court represents an imminent danger to the fair and untrammeled conduct of a federal election for the most powerful position in America and the world,” Fergenson continued. “The Supreme Court has the power to act to protect our democracy. And it should. If a guilty verdict is returned, it should act right away.”