Which judges will hear Donald Trump’s appeal? It’s too early to know, experts say

During a May 31 press conference, former President Donald Trump said he plans to appeal his conviction on 34 felony counts of falsifying business records. 

Even before he announced that intent, however, some people speculated about which justices might hear a Trump appeal. 

"The appeals court," one X user wrote, sharing a photo of five African American women in judicial robes. "I’m thinking the appeal won’t go well." 

The conservative X account Hodgetwins reshared that post, echoing the sentiment, "Trump is screwed on appeal." 

The photo spread beyond conservative accounts. 

Liberal commentator and podcast host Brian Tyler Cohen also shared the viral photo of the five justices, though he did not echo the claim that the demographics of the photographed justices would affect the outcome of Trump’s appeal.

"New: Trump’s appeal oral arguments will take place in front of the first all-Black women appellate bench," he wrote on X May 31.

(Screenshots from X.)

Claims that the photo shows the justices who will hear Trump’s appeal are inaccurate.

Experts told PolitiFact it is impossible to know now which New York justices might hear Trump’s appeal. 

Legal experts familiar with New York’s appellate system said that because the case is a Manhattan case, a randomly selected panel of justices from New York’s Appellate Division, First Department would hear Trump’s appeal.

The Appellate Division’s First Judicial Department includes 21 justices of the court, according to its website. They include 13 women and eight men, all from various racial and ethnic backgrounds. 

The five justices in the viral photo — from left, justices Bahaati Pitt-Burke, Troy K. Webber, Presiding Justice Dianne T. Renwick, Tanya R. Kennedy and Marsha D. Michael — are on the court. But there’s no guarantee these five justices would hear an appeal.

A panel of four or five, but most likely five, judges would be selected to hear the case, according to Daniel A. Warshawsky, a professor at New York Law School who worked in the Office of the Appellate Defender for 15 years.

"The panel of judges that will hear and decide Trump’s appeal gets selected after the briefs are in and before oral argument," said Sam Feldman, an attorney who specializes in criminal appeals in New York City. "It’s a random process. There’s no way to know now who will be on that panel." 

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Brooklyn Law School professor Cynthia Godsoe agreed with Feldman. The most we can know right now, she said, is that the justices will likely be selected from the pool of First Department justices, unless the case gets moved for some reason — for example, Trump’s team petitions for it to be moved somewhere else.

"It’s just a pure jurisdiction thing," Godsoe said. Trump’s legal team "could file to move it, like they tried to move the trial, but (it’d be) highly unlikely, especially for an appeal," she said. 

The First Department shared this photo of five judges in a Feb. 14, 2024, press release that acknowledged the first time oral arguments before the Appellate Division’s First Department were heard "by an all African-American bench."

PolitiFact contacted the court and received no response before deadline.

The appeals process will likely take time, experts said. 

"After sentencing, his lawyers will file a notice of appeal," Feldman said. "Then the appeal needs to be briefed, which can take many months." 

Trump’s lawyers will file a brief, the prosecution will file a responding brief and then Trump’s lawyers can file a reply, he explained. After that, the case would be scheduled for oral argument.

"In an ordinary case it can take years between sentencing and oral argument in the appeal," Feldman said. "Even if things move quicker in Trump’s case, I would be very surprised if the oral argument occurred before 2025."

Godsoe said that it was probably statistically unlikely that the justices in the viral photo shared by social media users would be the ones randomly selected to hear Trump’s case. With 21 justices, more than 20,000 different five-person panels could be randomly generated, statisticians confirmed to PolitiFact.

If they were, however, Godsoe said she knew of no reason they wouldn’t be impartial justices. 

There are ethics policies in place that help ensure justices can rule on cases without bias. And there’s nothing inherent in a person’s race or gender that means they will not, Godsoe said: "White men hear claims by people who are very different from them all the time."

"If there’s a conflict of interest or even an appearance of impropriety, (justices) could recuse themselves or be required to recuse themselves," Godsoe said. That means Trump would get five randomly assigned judges from the First Department, "but if somehow one of them had a conflict, then they would be off the five and they’d put someone else, randomly, on." 

Our ruling

Social media users shared a photo they said showed the justices who will rule on Trump’s appeal.

The group justices who will rule on Trump’s appeal will not be assigned until Trump’s legal team has filed an appeal and briefs have been filed, experts told PolitiFact.

It’s possible the justices in the photo would be randomly selected to hear Trump’s appeal, but that has not been determined. They are among 21 people who could be chosen for a four- or five-person panel and chances are statistically slim those exact five would be picked. 

Based on what is known May 31, one day after a jury convicted Trump, we rate these claims False.

PolitiFact Researcher Caryn Baird contributed to this report.

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