Below is my column in The Hill on the ongoing deliberations in the Trump trial. The instructions in the case raised concerns that the deliberations could become a legal version of a canned hunt, where the prey is trapped in a cage or fenced in areas to be dispatched. Elements of the instructions are disturbing in reducing what is required to convict the former president.
Here is the column:
Today the jury began its deliberations in the trial of former president Donald Trump. Before jurors left, however, Judge Juan Merchan framed their deliberations in a way that seemed less like a jury deliberation than a canned hunt.
For many of us, the Trump trial has seemed otherworldly, a vaguely familiar proceeding where common elements of a trial seem to have been flipped.
Even before the jury instructions, the trial was controversial for both liberal and conservative commentators. At the start of closing arguments, most honest observers were still wondering what the prosecutors were alleging as to the crime that Trump was allegedly concealing with the falsification of business records.
Then came the closing arguments. Around the country, it is standard for the government to go first with a closing to allow the defense to respond. The government is then given the privilege of a rebuttal after the defense rests. In New York, the defense must go first, giving the government free rein over its closing with no risk of contradiction from the defense. With the exception of objections, any abusive or improper arguments are left to the judge to address.
In the case of Judge Merchan, that protection was all but absent as the prosecution engaged in flagrant violations from offering testimony on unestablished facts to directly contradicting prior instructions. In one of the most egregious moments, Prosecutor Joshua Steinglass told the jury that it is an established fact that former Trump counsel Michael Cohen committed a federal election law violation on the direct orders of Donald Trump. Merchan had repeatedly said that Cohen’s earlier plea could not be used to imply the guilt of Trump. Merchan overruled an objection and Steinglass proceeded, as he did earlier in trial, to repeat the false statement.
Merchan did nothing as Steinglass told the jury that Hope Hicks cried in court because she knew that she had destroyed Trump’s defense (Hicks has never explained why she cried). Merchan did nothing as Steinglass falsely told the jury that the media and political campaigns do not do what Trump did in seeking to kill and plant stories. (This ignored, for example, that the Clinton campaign did precisely that repeatedly in the very same election, including with the false Russian collusion allegations).
It was only when Steinglass repeatedly instructed the jury on the law that Merchan finally sustained objections, at the end of his closing arguments.
So going into the deliberations, the court allowed the jury to be told repeatedly that there were federal campaign violations committed by Trump. That is not true. Putting aside that the federal government found no basis to impose a civil fine, let alone bring a criminal charge, the court barred a legal expert who could have shown that no such violation occurred. The jury does not know that. Instead, the judge allowed them to be repeatedly told a false fact that could make it difficult for anyone to acquit.
However, the instructions then went in for the kill and turned the jury deliberations into a canned hunt.
Consider just a few highlights from the curious aspects of these deliberations.
First, the judge has ruled that the jury does not have to agree on what actually occurred in the case. Merchan ruled that the government had vaguely referenced three possible crimes that constitute the “unlawful means” used to influence the election: a federal election violation, the falsification of business records, and a tax violation. The jurors were told that they could split on what occurred, with four jurors accepting each of the three possible crimes in a 4-4-4 split. The court would still consider that a unanimous verdict so long as they agree that it was in furtherance of some crime.
Second, the judge said that he would instruct the jury on the law but then omitted the key elements that established there was no federal campaign violation. Indeed, the blocked legal expert, Brad Smith, the former chair of the Federal Election Commission, was going to testify that this could not have been a federal election violation. Moreover, even if Trump’s legal settlement money could be viewed as a federal campaign contribution, it could not have been part of a conspiracy to influence the election since any reporting of a contribution would have had to occur after the election.
Third, not only can the jury disagree as to what occurred, but one of the three crimes is so circular as to produce vertigo in the jury room. The prosecutors zapped a dead misdemeanor back into life by claiming a violation under New York’s election law 17-152. The argument is that the crime was committed to further another crime as an unlawful means to influence the election. However, that other crime can be the falsification of business records. So the jury (or some jurors, at least) could find that some documents were falsified as an unlawful means of falsifying other documents.
Finally, Merchan is allowing conviction based on a “general intent” to defraud “any person or entity,” a dangerously vague concept in this novel criminal case. Merchan has largely stuck to the standard jury instructions but this case is anything but standard. With an ambiguous claim of “influencing” an election, a general intent instruction without better definition to this case can be an invitation for bias.
Given the instructions and the errors in this trial, it would seem that an acquittal is almost beyond the realm of possibility. That leaves either a hung jury or a conviction. However, the framing of this case and failure to protect the rights of the defendant have undermined the perceived legitimacy of the proceedings and any possible verdict.
With Trump in a tight cage, Merchan just left it for the jury to deliver the coup de grace. We will see. I remain hopeful that a couple jurors will balk at this manufactured criminal theory. Canned hunts are great for trophies, not so much for trials.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
Hinderaker at Powerline says this with which I agree.
“the Democrats understand nothing except the raw exercise of power. Therefore, Republican attorneys general and district attorneys should bring criminal charges against Democratic officeholders wherever possible. No Democratic officeholder should be allowed to retire, in any jurisdiction with Republican law enforcement, without facing criminal charges. There can’t be a single Democratic official in America against whom a criminal case can’t be brought that is better than this case against Trump. It should be open season on Democrats in the criminal courts.”
Jonathan, I’m an independent voter. I was also a prosecutor for the first 13 years of my career. I have never seen anything like this ever. No notice as to what the underlying crime was. No instructions as to what crime it was and what they would have to find in order to find there was an underlying crime. No unanimity for any crime. It is Kafkaesque. Actually it turns my stomach.
@Allie,
“ No instructions as to what crime it was and what they would have to find in order to find there was an underlying crime.”
You must have been asleep throughout the trial. The crime was spelled out by the judge, the indictment, various legal analysts and observers.
It’s a shock to those who have been exercising willful denial and wallowed in ignorance. The jurors even requested a re -reading of the crimes. All 34 of them.
George….do not be a condescending Putz. The crime was not spelled out in the indictment, and it was not even spelled out (then only barely with no elements nor how the underlying crime was proved beyond a reasonable doubt) until closing prosecution arguments. The jury instructions did not define what each individual underlying crime was, and how to establish the elements for a violation . There were no instructions as to what the crime or crimes underlying all of this was at all. You have to instruct what the underlying crime was, and what the elements were and how they were proved. That didn’t happen. if you think the judge spelled it out and the indictment spelled it out, then it must be nice living in your head with Peter Pan and the Easter bunny. And I will repeat for the sake of clarity, I’ve been a lawyer for 30 years and a prosecutor for the first 13 years of my career, putting away some very very bad people, some for several hundred year sentences. The due process violations here are mortifying and the only way to describe it is Kafkaesque. And I am not a cultist for Trump. I am a strong, independent, voter, female, and I have a strong sense of justice. In my career putting bad guys away I would never have even contemplated doing what I watched just occur. If you were not revolted by how all of this occurred then you are part of the problem.
Allie: Well said. And from a person who has the knowledge and experience to know what she’s talking about.
Most comments I barely skim. Yours I read twice.
It turns the stomach of every rational adult in our country that justice has no standing in our county.
Dumb Democrats, Marxists, and miscellaneous Lefties can temporarily rejoice that the US. Constituion was totally violated. But within the next few months, an expedited appeal will prove, indeed, that Bragg and Juan “The Con” Merchan violated the US Constitution to secure their political conviction. Then, Trump will be in the perfect position to prove that the Democrats were the ones lying and projecting that Trump would “destroy democracy,” when it was THEY who have been destroying the US Constitution all along.
What part of the Constitution was violated. Fun rule: you have to quote an actual part of the US constitution.
The fifth and fourteenth amendments, which guarantee the rights of a citizen to due process, for a start.
Well….I’m gonna head of to celebrate and enjoy the rest of my day. Toodaloo.
If you celebrate the demise of due process then you get whatever comes your way.
Trump had due process. He was represented by counsel who had no answer for the smoking gun documents that incriminated him- the “grossed up” statement that proved the payment was reimbursement and not attorney fees. Trump admitted it was reimbursement. So, his well- paid lawyers attacked Cohen and Daniels, but the jury didn’t buy the attacks and name-calling. They believed Cohen and Daniels.
But they couldn’t argue away Hick’s testimony about the adverse effect of the Access Hollywood tape or Pecker’s testimony about the “catch and kill “ payoff to McDougal for the purpose of benefiting Trump’s campaign. The $150,000 payment to McDougal was an illegal campaign contribution because federal law caps contributions to $12,000. Trump could have testified but chose not to. He’s so dirty that he couldn’t take the stand.
Despite all of the MAGA media outrage, the evidence was there. Trump was brought to justice. He’s no victim, and he’s a disgrace. No one is above the law.
Gigi, if you think this is due process, then you’re also part of the problem. As a current lawyer and a former prosecutor, I’m revolted by all of this. Revolted. I was a democrat for decades until the progressive took over and disgusted decent moderates. It’s the moderates who’ve been leaving the Democratic Party and have been registering as independent. I will forever believe in justice and what just occurred in That lower Manhattan court is so far from due process that any Decent person would vomit. To me, this has nothing to do with Trump. It has everything to do with totalitarianism and power. It is the reason I left the democratic party after being in it for decades.
Do me this favor: explain how or why the actual evidence was not sufficient to prove the 34 felonies Trump was convicted of. Address the testimony and documentation that the jury relied on—not your conclusions. Explain how or why he didn’t falsify documents to misrepresent the payoff as attorney fees when Weisselberg noted that payoff was “grossed up “ to cover Cohen’s tax liability, and that there were no attorney services involved. Explain how Pecker’s testimony about “catch and kill “ to benefit Trump’s campaign did not constitute a campaign finance violation when the maximum legal amount for such contributions was $150,000.
Correction: Pecker paid $150,000 but the maximum legal amount was $12, 000.
I agree 1000%, an out of control tyrannical regime.
Above the law? We have no functioning justice system. This is Fascism. Democrats shredded the Constitution and destroyed what was left of “rule of law.” Today, we officially became a Lawless Authoritarian 3rd World Banana Republic.
Take note: The election is over as of today. No matter what Biden does, whether they steal it again, or he wins legit (unrealistic), the public will NEVER accept his presidency as legitimate. Biden will NEVER have the consent of the governed. Biden is finished. So is the Democrat Party.
Be sure to take care lots of tissues and hand cream.
I suggest that all subcretins do that. After the expedited appeal and the fake-case against Trump is thrown out, you will have the rest of your life to hide in shame, misery, and the permanent reality of your own stupidity.
I am amazed that radical Democrats were willing to cross this bridge and blow it up behind them.
I am also amazed that the New York legal system has so many nuts in it.
No telling what comes next, but likely not to be good.
The Romney Republicans can forget about reaching across the aisle in amity. There is nothing there but slathering, rabid hyenas.
Too bad nobody seems to remember who the Jackobins were and how that turned out.
Young said: “The Romney Republicans can forget about reaching across the aisle in amity. There is nothing there but slathering, rabid hyenas.”
Good riddance to the “Romney Republicans”, they are hyenas like their mentors, the Demoncraps. just sometimes slightly better at hiding it. As for what literally comes next, I do not know, but what comes ultimately, after Trump’s prospective election, is retribution in kind, and beyond, on the 1d10t ba$tard$ that started this travesty in motion. I don’t think that Donald Trump is the type to forget and forgive this stuff just because he wins in November; I think there will be a no holds barred campaign to inflict as much damage as possible, in any way possible, on the perpetrators of this farce. I’m not convinced that will be of overall benefit to you and me, but I understand it, and won’t condemn it.
NOTE TO SUPREME COURT:
“FOR EXTREME DISEASES, EXTREME METHODS OF CURE, AS TO RESTRICTION, ARE MOST SUITABLE.”
– HIPPOCRATES, 460 – 370 BC
The tears of Trump supporters are delicious.
A New York democrat jury today has propelled American into a Banana Republic and created its own Juan Guaidó. Sad day indeed.
You are a voice of reason in your comments regarding the verdict of the Trump trial, thank you.
GUILTY!!!!!!!!!!!!!!!!!!!
The mockery and abuse of our “system” by the likes of Bragg & Merchan are legion and abysmal. It makes no sense how Merchan can twist law on the fly to satisfy his version of whatever. Totally insane upside down lawfare for all to see.
34 of 34.
Absolute proof of total corruption.
Of the NY judicial system? Yes!
Of the entirety of the communist (liberal, progressive, socialist, democrat, RINO, AINO) American welfare state.
I’m sure the professor will write a column charting the course to an appeal and reiterate the “errors” that will facilitate the expected appeal. That may take a few weeks or months, who knows.
All kinds of criticisms and bloviating will be coming from Trump supporters in congress and calls for investigations on the judge and the DA, because it’s such a travesty that Trump was forced to face the consequences for his actions.
This will be a long day indeed.
You are weak sauce for validation of the corruption of our justice system. You would be the very kind of person that mao wanted to do your family in during the cultural revolution genocide.
So what. Trump is guilty. Now the mockery and derision that is coming his way will be what he dreaded the most. Not jail or fines, but the stigma of being a criminal and a convicted felon. The law won. Now he gets to exercise his right to appeal and the continued progression of right to due process.
I for one am glad that he got to face the consequences of his actions and that it was done according to the law. Eventually the law catches up to you and trump just had the misfortune of experiencing it at the worst possible time.
Thats literally not how this works you braind dead retard. Convictions are overturned on appeal constantly because bigots like you infest the legal system with your prejudice all the time.
Until it’s overturned. He’s considered a convicted felon and a criminal. Only after the conviction, if it’s overturned, does he cease being a convicted felon.
When Trump wins the election, won’t that constitute a rejection of this verdict by the American people?
And don’t discount me as a deluded Trumpist. I intend to vote for Jill Stein (as I already did in her two previous runs.)
No, his conviction will remain if it’s not overturned on appeal. It’s a state law. He wouldn’t be able to pardon himself away from the conviction. That’s why it’s a significant event.
You did not answer my question. Let me repeat it: when Trump wins the election, will that not represent a repudiation of this verdict by the American people?
George, little man…the law lost. Due process lost. New York has become a banana republic. There is rampant filth and rampant crime. Criminals are let go in a revolving door. There is absolutely nothing to celebrate here. Nothing at all unless you like mayhem and anarchy. I’ve been a lawyer for over 30 years and this is so offensive it blows my mind. I am law and order and a former prosecutor. But what I’ve just watched occur makes me want to vomit. The fact that you little George are not offended by this is very troubling.
Allie said: “the law lost. Due process lost.”
OTOH, Trump may have essentially won:
Trump campaign donation site crashes in wake of NY criminal trial verdict
https://justthenews.com/politics-policy/all-things-trump/trump-campaign-donation-site-crashes-wake-ny-criminal-trial
I think the only reasonable interpretation of that is that so many people were motivated to donate by this travesty of justice that the servers couldn’t handle the traffic. I’m a minarchist/small-l-libertarian who is not a big fan of Donald Trump. I frequently don’t vote because I can’t stomach any of the candidates, and I have never, ever, contributed money to a political campaign. But I’m so disgusted by this trial and the outcome, that I just might join those people in contributing.
These jurors are aware that Cohen plead guilty to campaign finance laws, and Trump was never charged. Don’t they, in effect, have to come to a conclusion, beyond a reasonable doubt, that the people in charge of campaign finance law were wrong not to charge Trump? I know Bragg threw in 2 other options, but if you’re going to go with this one, it strikes me that’s what you have to do. Setting aside the jurisdictional issue of course.
This whole campaign finance law has to be reworked by the way. You must declare something a campaign expenditure if it influences an election. But you must NOT declare something a campaign expenditure if it is for personal use. Obviously, this that and the other can fall under personal use and election influence. What are you supposed to do. Flip a coin?
“ These jurors are aware that Cohen plead guilty to campaign finance laws, and Trump was never charged.”
He couldn’t be charged. He was president when Cohen got charged. He was immune from prosecution as president. Now that he’s just citizen Trump he’s facing the same outcome.
Another strawman BS argument. In any event using cohen as Bragg did – which he said he’d be insane if he did…well just goes to show you the lengths the system will go to besmirch opposition at every level. They fear daylight , hence they fear Trump.
Trump’s been out of office for years. They dropped the case shortly after he left.
“F.E.C. Drops Case Reviewing Trump Hush-Money Payments to Women”
https://www.nytimes.com/2021/05/06/us/politics/trump-michael-cohen-fec.html
As expected the wailing and gnashing of teeth of Trump supporters will ensue throughout the day. Cries of “corruption” and “vengeance” and all kinds of apocalyptic rhetoric will be spoken.
I’m sure there will be calls to prosecute the judge or the DA because it’s unjust and unfair that Trump was held accountable for his actions. John Say claimed this was not an important trial. Well based on the reactions here and on social media it is pretty darn important. Looks like the prosecution succeeded in proving without a doubt Trump committed a crime.
“THE LUNATICS HAVE TAKEN CHARGE OF THE ASYLUM.”
– RICHARD A. ROWLAND
Trump is now a convicted felon.
Not for long, I suspect.
Let the fighting begin.
George just came in his pants.
If only Trump had committed a crime.
@Iowan2,
He did. He was found guilty of falsifying business records in the first degree by a jury. He’s officially a felon and a criminal. Now he can appeal the verdict from the position of a convicted criminal.
‘Judge’ Marchan and New York legal system guilty.
Guilty on all counts!!
None of this will matter when we’re dead, so we’re getting all worked up over nothing.
Dust in the wind.
All were are is dust in the wind.