If you’ve been following former President Donald Trump’s hush-money trial in New York, you might have seen the shocking news that the judge in that trial, Juan Merchan, issued bizarre and plainly unconstitutional jury instructions on Wednesday, telling jurors they need not agree on what crime Trump allegedly committed to reach a unanimous guilty verdict.
You read that right. According to Judge Merchan, the jury could come back with a guilty verdict without agreeing on whether Trump committed election fraud, tax fraud, or falsification of business records. He essentially divided the jury into three groups of four, saying that if they’re split 4-4-4 on what crime Trump committed, he’d treat that as unanimous. To say this is unusual is of course a gross understatement. As Guy Benson noted on X, it amounts to a “choose your own adventure” jury instruction.
To make sense of these instructions, however, one must first understand the insane underlying theory of the case the prosecution has attempted to make, which is no easy task. It goes something like this. Manhattan District Attorney Alvin Bragg indicted Trump on 34 counts relating to allegations that Trump instructed his former lawyer, Michael Cohen, to pay “hush money” to pornographer Stormy Daniels to conceal an alleged past affair, and then falsified business records to label the payments as legal fees instead of campaign expenses.
Setting aside that it would have been a violation of federal campaign finance law to label such payments as campaign expenses, Trump’s alleged falsification of business records would only qualify as felonies if they were done in the service of some other crime that Trump intended to commit or conceal. What crime was that? The prosecutors have been vague on that point. No one can really say what crime, if any, the alleged falsification of business records was connected with.
Even now, after closing arguments, it’s not clear what underlying crime Trump was trying to conceal. During closing arguments earlier this week, Merchan allowed the prosecution to claim repeatedly that Trump committed federal campaign violations, which is not true. He then said the prosecution had referenced three possible crimes that could constitute the illegal means Trump used to influence the election: a federal election violation (which didn’t happen), a tax violation, and falsification of records. Jurors need not agree on which of these three occurred, said Merchan, but could also reach a unanimous verdict so long as the crime they all agree to was in furtherance of another crime.
But it gets worse. Merchan also barred Trump’s defense lawyers from explaining to the jury that no campaign finance violations had occurred and then allowed prosecutors (who gave their closing statement after the defense) to claim, falsely, that federal campaign finance violations had indeed occurred. The judge didn’t try to correct prosecutors or clarify any of this for jurors before sending them away to deliberate.
It’s pretty clear by now, if it wasn’t before, that this entire trial is a fishing expedition designed to convict Trump of something. Jonathan Turley called it a “manufactured criminal theory,” which it obviously is. Last April when the indictment was unsealed, my colleague Margot Cleveland wrote that Bragg had attempted to “bootstrap a federal election violation onto state law by claiming Trump falsified the business records to conceal campaign finance crimes,” and that the charges were “even more pathetic than anticipated.”
Now that the oral argument phase of the trial is over, the prosecution’s case hasn’t improved. In fact, it appears to be so weak that Merchan is discarding not just basic legal norms to get the jury to convict, but also basic reason. After all, how can a jury reach a unanimous verdict if they don’t even agree on what happened?
The only way to understand any of this is to realize that this isn’t about the law or seeing justice done for a crime. It’s about power. Denying Trump basic constitutional rights such as due process, as Merchan has done repeatedly in this case, is a way to demonstrate that Trump has no power compared to the New York Democrats who are trying to jail him before the November election. That was also the purpose of the unintentionally humorous press conference with actor Robert De Niro the Biden campaign held outside the courthouse this week.
These demonstrations of power aren’t meant merely to demoralize Trump and restrict his ability to campaign for president, they’re also meant to demoralize his millions of supporters all over the country. They are meant to understand that their man is going down and they would be smart to submit to those who actually have power: Democrats.
It’s also something more than that. It’s a threat. After all, if they can do this to Trump, just imagine what they can do to you.
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