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 Trump’s guilt. 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, Ben 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.