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.