Judge in Trump Trial Tells Jurors They Don’t Need to Agree on Elements of Underlying Crime to Convict

(Left) Judge Juan M. Merchan poses in his chambers in New York City, on March 14, 2024. (Right) Former President Donald Trump at Manhattan Criminal Court in New York City, on March 25, 2024. (Seth Wenig/AP Photo; Spencer Platt/AFP via Getty Images)

Several legal experts have raised questions about Judge Juan Merchan’s instructions to the jury in former President Donald Trump’s business records falsification trial in New York, with some suggesting the instructions were prejudiced towards a guilty verdict because the judge told jurors that they don’t have to agree on elements of an underlying crime the former president allegedly committed in order to convict him.

Judge Merchan’s jury instructions could prove crucial in the case, in which the former president is accused of falsifying business records to conceal non-disclosure payments to a former adult film actress, because even small nuances in the instructions can make a big difference when a jury weighs whether to find President Trump guilty.

In a Manhattan courtroom on May 29, Judge Merchan instructed jurors about a key aspect of the case, namely the underlying crime of conspiracy to promote or prevent an election by “unlawful means” that elevates the misdemeanor of business records falsification to a felony. Prosecutors have charged President Trump with felony-level business records falsification, which requires the fraud to be carried out to conceal another crime.

The judge told jurors in his instructions that prosecutors must persuade them on two aspects of the count of falsifying business records in the first degree in order for them to convict: one is that President Trump “personally or by acting in concert with another person or persons made or caused a false entry in the records” of a business and, two, that the former president did so with the intent to commit or conceal another crime.

“If you find the People have proven beyond a reasonable doubt each of those two elements, you must find the defendant guilty of this crime,” he said.

The underlying crime that President Trump is being accused of intending to commit, aid, or conceal is a violation of New York Election Law section 17-152, which provides that “any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

‘You Need Not Be Unanimous’

Even though the judge said that the jury must be unanimous on the two elements, he told them they don’t need to agree on some of the “unlawful means” that are part of the alleged underlying crime that allows the charges to be elevated to a felony.

“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were,” the judge said.

Judge Merchan told jurors that, in order to determine whether President Trump conspired to promote or prevent the election of any person to a public office by unlawful means, they may consider three possible unlawful means, on which they don’t have to agree.

The three alleged unlawful means that jurors are to consider are: violations of federal campaign finance law; falsification of other business records, such as bank records or tax forms; and violation of city, state, and federal tax laws, including by providing false or fraudulent information on tax returns, regardless of whether it resulted in underpayment of taxes or not.

Some legal experts raised objections to this aspect of the jury instructions as potentially biased. Jonathan Turley, a prominent law professor who was present in the courtroom for Judge Merchan’s instructions to the jury, expressed his reservations regarding this part of the instructions.

“Merchan just delivered the coup de grace instruction,” Mr. Turley wrote on X. “He said that there is no need to agree on what occurred. They can disagree on what the crime was among the three choices.  Thus, this means that they could split 4–4–4 and he will still treat them as unanimous.”

Phil Holloway, an attorney and legal analyst who’s been featured on various networks, including both CNN and Fox News, alleged in a post on X that Judge Merchan’s instructions were “rigged” in favor of prosecutors such that an “outright Trump win is impossible.”

Another legal expert, former Kansas Attorney General Phillip Kline, expressed similar reservations about the jury instructions.

“It is all in the instructions!” Mr. Kline, a law professor at Liberty University, wrote in a post on X. “Judge Merchan has thru delay and obfuscation hampered the preparation of a defense, constructed a manner for the jury to convict without agreement on what crime was committed, and paved the way thru allowing irrelevant evidence for mere animus towards Trump to convict! Welcome to the left’s living Constitution!”

‘Most Biased and Unfair’ Jury Instructions in History: Trump

Speaking to reporters in the hallway outside the courtroom, President Trump claimed the jury instructions were “rigged” against him.

“It’s a disgrace. Mother Teresa could not beat those charges. But we’ll see. We’ll see how we do,” President Trump said.

The former president later took to Truth Social, his social media platform, to allege judicial bias and election interference by way of jury instructions.

“According to the Legal Scholars and Experts, the Jury Instructions, given by a highly Conflicted Judge, will go down as the most biased and unfair in Judicial History. Biden Witch Hunt. Election Interference!!!” President Trump wrote.

The jury has been sent to deliberate, with the former president waiting behind closed doors in a room at the courthouse while that process plays out.

It’s unclear when the jury will render its decision. They may deliberate for days.

On Tuesday, defense counsel and prosecutors made their closing arguments, with President Trump’s team asking the jury to return a not guilty verdict.

Prosecutors have alleged that there is enough evidence to convict the former president of falsifying business records in the first degree.

Background

In the case, Manhattan District Attorney Alvin Bragg charged President Trump with 34 counts of falsifying business records in order to conceal an alleged $130,000 non-disclosure payment to adult film actress Stormy Daniels.

Under New York state law, falsifying business records by itself is a misdemeanor. But if the records fraud was used to cover up or commit another crime, the charge could be elevated to a felony.

Mr. Bragg has charged President Trump with a felony falsifying records charge, which would require prosecutors to prove that it was done to hide the commission of a second crime.

A number of legal experts have challenged the validity of Mr. Bragg’s move to elevate the falsifying business records misdemeanor into a felony charge.

Alan Dershowitz, a professor who taught at Harvard Law School for nearly 50 years, expressed skepticism of the legal grounds supporting Mr. Bragg’s case.

Similarly, former U.S. Attorney General William Barr has criticized the indictment, calling it a “disgrace” and a “political hit job.”