"No lawful ability": Experts pour cold water on Trump and Johnson's scheme to "subvert" conviction

Donald Trump; Mike Johnson Photo illustration by Salon/Getty Images

Former President Donald Trump stopped in Washington, D.C., Thursday to rally Republican lawmakers behind his 2024 candidacy and look ahead to the 2025 legislative agenda. But before his first visit to Capitol Hill since his Jan. 6, 2021, remarks on the Ellipse and the subsequent Capitol riot, Trump roused the highest-ranking Republican in Congress with an audacious demand.

In a phone call to House Speaker Mike Johnson, R-La., in the days after his felony conviction in New York, the former president began to roll out a campaign to wield the powers of Congress against the Democrats he charges with "weaponizing" the justice system against him, Politico reports.

"We have to overturn this," Trump told Johnson during the call, characterized by Trump's lingering anger over his conviction and frequent F-bombs, according to sources who have heard accounts of the exchange from the speaker.

Trump's reported aim to "enlist House Republicans" in efforts to have his conviction overturned "not only shows the former president lacks a basic undertaking of how our system of government works, but it also demonstrates his continued disrespect for our criminal justice system," Temidayo Aganga-Williams, a former federal prosecutor and senior counsel to the House Jan. 6 Committee, told Salon.

"Trump had his day in court and the jury rendered its fair verdict," said Aganga-Williams, a white collar partner of Selendy Gay PLLC in New York. "Trump can appeal his verdict through normal channels, but instead he is looking to subvert norms."

Trump, both the nation's first former president to be charged with a crime and its first to be convicted, was found guilty late last month of 34 felony counts of falsifying business records after prosecutors alleged he sought to unlawfully conceal an alleged sex scandal with an adult film actress from voters ahead of the 2016 presidential election. He has denied wrongdoing and the affair allegations, continuing to rail his prosecution post-verdict as "rigged."

The presumptive GOP nominee's sentencing is scheduled for July 11, just days before the Republican National Convention in Wisconsin. Legal experts previously told Salon that, as a first-time offender of a low-tier felony, the former president is likely to avoid jail time.

"Our system of justice is one that can be trusted, regardless of what Trump says," Aganga-Williams said. "The former president isn't a victim of our system, he's rightfully being held accountable by the system."

Former federal prosecutor Neama Rahmani told Salon that the reported exchange between Trump and the speaker was reminiscent of Trump's 2020 call to Georgia Secretary of State Brad Raffensperger in the wake of the election, pressuring the state official to "find 11,780 votes" needed to overturn his electoral defeat in Georgia.

Unlike Raffensperger, however, Johnson sympathized with the former president's aggravation. He was the most high-ranking Republican leader to attend Trump's Manhattan trial and assailed it as an "illegitimate sham" that's "all about politics" outside the courthouse, continuing the criticism of Manhattan District Attorney Alvin Bragg's case he took up before he won the speaker's gavel.

One person familiar with the conversation told Politico that Johnson didn't need much convincing. The former attorney already thought the House could play a role in alleviating Trump's legal woes, and the duo have spoken about the matter a number of times since.

In actuality, the House can't do much, legal experts said. Congress has "no lawful ability" to actually get the former president's conviction overturned, according to Barbara McQuade, University of Michigan law professor and former federal prosecutor.

It's a "separation of powers issue as well as a federalism issue," Rahmani explained. The federal government doesn't have any authority over the states other than what is authorized by the Constitution, and in this case, such authorization couldn't exist because it applies to two separate branches of government.

"You're talking about the federal legislative branch trying to tell the state executive branch what to do," he said.

The status of Trump's conviction, then, is "a matter for New York State courts, not Congress," McQuade told Salon. Trump has already vowed to appeal.

Most of what Congress could do is "retaliate against Alvin Bragg" by way of cutting federal grants and funds awarded to state and local prosecutors, and demanding the D.A. "testify about how he is using grant money in his work," McQuade added.

But Johnson doesn't appear to have the backing needed to deliver for the former president within the scope of Congress' duties either, Politico notes. Within the party's slim majority in the lower chamber, swing-district members run skittish while GOP efforts to impeach President Joe Biden have all but died out.

A Wednesday contempt vote against Attorney General Merrick Garland just barely passed, and a series of proposals aimed at what Republicans call "rogue prosecutors," namely those investigating Trump, appear to lack traction among members.

Wednesday afternoon also saw House Republican leaders whipping a bill from Rep. Russell Fry, R-S.C., that seeks to permit presidents charged at the state level to move those cases to the federal court — a move that would effectively strip the power of officials like Bragg and Fani Willis, the Fulton County district attorney handling Trump's Georgia prosecution. Fry's bill, filed in April 2023 and reported by the Judiciary Committee last September, is only now being prepped for possible floor consideration.

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The speaker has also discussed the possibility of using the appropriations process to target special counsel Jack Smith's cases against Trump with Judiciary Committee chair and faithful Trump ally Jim Jordan, R-Ohio.

None of these proposals have the votes needed to pass, Politico notes. Senior appropriator Rep. Mike Simpson, R-Idaho, called the notion of slashing Smith's funding was "stupid."

“I don’t think it’s a good idea unless you can show that [the prosecutors] acted in bad faith or fraud or something like that,” he told the outlet. “They’re just doing their job — even though I disagree with what they did.”

“We accuse Democrats of weaponizing the Justice system. That’s exactly what we’d be doing,” added another skeptical senior Republican granted anonymity to speak without fear of right-wing backlash.

Still, Johnson's leadership remains steadfast in its goals. Fry — who told Politico he has not yet spoken to Trump about his proposal — aims to educate his GOP colleagues in the chamber on the legal precedent, arguing that, if federal legislators, executive officials and judges can already legally attempt to have their local cases moved to federal court, the president should too.

“In my experience so far, the more [House members] have heard about it, the more comfortable they are with it,” he said. “It’s not a unique concept.”

The federal removal Fry describes, however, comes with its own caveat, McQuade noted.

"Federal removal already exists, but only for crimes committed while in office within the scope of official duties," she said. "To strip state courts of jurisdiction for crimes committed outside of federal office would be a violation of states’ rights."

Even if Trump-allied Republican lawmakers put forth their best efforts with his other trials, nothing can be done to assist the former president with his conviction, especially with his sentencing weeks away, Rahmani and McQuade said.

"Frankly, it's too late. He's been convicted. He's going to be sentenced on July 11 and there's going to be a judgment," Rahmani said. "There's no law that's going to pass the House, pass the Senate — controlled by Democrats — and be signed into the law by Biden that's going to help Donald Trump."

"All they can do is use the political process to undermine public confidence in the conviction," McQuade added.

Aganga-Williams said that House Republicans won't find success in trying to "obstruct" remaining Trump prosecutions in "any material way" because they lack the political power.

Instead, "these efforts will contribute to the continued erosion of faith in our institutions," he argued. "These attempts to interfere suggest to the American people that these prosecutions are not supported by the evidence and that's simply not true. Our system may not be perfect but it is good and it has been more than fair to Trump."