Just before jurors in Donald Trump’s trial for falsifying business records went into deliberations on Wednesday, New York Justice Juan Merchan gave the jury records an excellent roadmap to their verdict. Of his instructions on the law, five stood out —along with two he did not give. Now that the powerful evidence the prosecution produced sits in the frame of legal instructions, it’s easier to see why Manhattan DA Alvin Bragg believed from the start that a guilty verdict was more likely than not. With juries, of course, one never knows.
1. The “other crime”:
A central element of the crime is that prosecutors must prove Trump falsified business records in order to commit or conceal another crime.
It is the committing or concealing of another offense that elevates misdemeanor falsifications to felonies, as the grand jury alleged. Analysts across the board – present company included – identified the “other crimes” as limited to tax law violations and state or federal election law offenses. We missed something.
Justice Merchan’s instructions said that the jury may also consider the potential “other crime” of falsifying these other business records:
- Bank records associated with Michael Cohen account formation paperwork for the shell companies he created to pay Stormy Daniels and others;
- Bank records labeled “retainer” that were associated with Michael Cohen’s wire of the pivotal $130,000 payment to Stormy Daniels’ lawyer;
- An invoice which Cohen sent to one of the shell companies, representing that it was for “advisory services” rather than for the payment to Stormy Daniels; and
- the 1099 tax form that treated the checks from Trump as income rather than as reimbursements.
In other words, there are potentially criminal falsifications of business records other than the 34 checks, invoices, and ledgers that the grand jury identified and charged as separate crimes in the indictment.
For the jury to have this option for finding proof beyond a reasonable doubt on what may be the most difficult element of the case is a very big deal, illuminating another path to a guilty verdict.
2. Criminal acts Trump did not commit himself:
Justice Merchan instructed the jury that Trump may be held criminally liable for the conduct of others (such as Cohen or Weisselberg) with whom Trump acted “in concert.” To hold Trump liable as an accessory, the jury must find that he “solicited, requested, . . .or intentionally aided that [other] person to engage in th[e] crime, and that he did so with the state of mind required for the commission of the offense.”
If, for example, Trump intentionally aided Cohen in the commission of the crimes by signing falsified “retainer” checks that he knew were reimbursements, then he “aided” the crime, and the jury is to find him liable.
3. Mix and Match”:
Justice Merchan instructed the jury that it must conclude unanimously that “the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, but that it need ”not be unanimous as to what those unlawful means were.” In other words, the jury may “mix and match” so long as every juror believes that Trump intended to commit or to conceal the commission of one of the three other crimes.
4. Tax Fraud:
The instruction regarding tax fraud as the “other crime” stated that “it is unlawful to willfully make any tax return, statement, or other document that is . . . false as to any material matter,” regardless of whether it results in underpayment of taxes.” The alleged false statements on Michael Cohen’s 1099 tax document arose from the reporting as earned legal fees what prosecutors allege to have only been receiving a non-taxable reimbursement for purchasing Stormy Daniels’ silence. This is important because it allows the jury to find a tax law violation even if the government lost no money from the alleged crime.
5. Intent:
Significantly, the court gave a “general intent” instruction, not a “specific intent instruction.” What that means is that jurors were told that to find that Trump acted with the requisite criminal intent, jurors need only conclude that his “conscious objective or purpose [was] that unlawful conduct be performed.” The jury was not required to find that Trump knew that the conduct was unlawful or which law was being violated.
So what was the other important instruction that was not given?
It is known as a “lesser included offense” instruction. It would have granted jurors the option of finding Trump guilty of only misdemeanors if the prosecution had proven beyond a reasonable doubt all elements of the crime of falsifying business records except for the intent to commit or conceal another crime.
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Yesterday’s instructions, along with Tuesday’s closing arguments brought to mind two lines from songwriter Dan Wilson’s pop classic, “Closing Time.” It once topped the charts and ends here:
Closing time, every new beginning
Comes from some other beginning’s end
Soon enough, we’ll learn what kind of “new beginning” starts with the trial’s verdict at the end of history’s first criminal trial of a former president. While experts say the chance of an acquittal is zero, a hung jury would avoid a conviction, which is, according to polls, a significant hurdle to a “new beginning” for Trump in the White House. Alternatively, a guilty verdict would start his 2024 “new beginning” as a felon.
