The Trump Verdict: Guilty

Show trials and New York Justice

“Justice belonged to those who could enforce their will.”

The jury has reached a verdict: Donald Trump has been found guilty on all 34 counts of falsifying business records.

The trial – The People of the State of New York v. Donald J. Trump – lasted just over a month, part of a nearly ten year Democratic effort to convict Trump. The dirty work of Crossfire Hurricane and the Mueller investigation failed, the Fulton County prosecution is stayed pending appeal, and Special Counsel Jack Smith won’t get his cases to trial before the November 2024 election. But they always had New York – the State has made Trump and his company and his family a political target – and District Attorney Alvin Bragg came through with the early indictment.

The target might have been Trump, but the real goal was to influence the 2024 election, no matter the shaky facts and dubious legal theories of the case. Democracy must be saved even through unlawful and unethical means. The enemies of society must be hunted, the obstacles to progress must be destroyed. Even when they’re innocent Especially when they’re innocent.

As the years-long Trump investigation and prosecution continued, and as New Yorkers continue to deal with rampant crime and theft and felony assaults – which they often don’t even report due to “the revolving-door criminal injustice system” – Trump was pursued with rare intensity. The bodega shopkeepers, facing a shoplifting and armed robbery epidemic which empties their shelves and puts their lives at risk, are besides themselves. As are normal citizens whose safety is at risk daily. If only their interests were political. If only the perpetrator were the Republican presidential frontrunner and not a career criminal then perhaps they would see justice.

In trial, venue matters. It’s strategic, it’s the selection of a favorable judge and jury. Monsanto is sued in San Fransisco and the jury pours them out for $289 million. Cook County (Illinois) is notorious for high jury verdicts. So too is Philadelphia and Lansing, Michigan. Corporate defendants tremble in fear at being sued in working class cities along the Gulf coast. Texas brings suit against the Biden Administration in the Southern District of Texas – Galveston Division because the one federal district judge there (a Trump appointee) will not hesitate to stop unlawful acts or policies. Hawaii brought suit in Honolulu against the Trump Administration and obtained a temporary restraining order against Trump’s travel ban from an Obama-appointed judge. He was reversed by the Supreme Court, but that process took over a year.

Bragg brought his case in a Democratic stronghold which voted overwhelmingly for Biden in 2020 (87% Biden to 12% Trump). Bring this case upstate and you might get a different result. The jurors walked into the courthouse with biases against President Trump (so powerful were these prejudices that some prospective jurors lied to try to get selected), and their own political preferences were certainly considered when reaching their verdict. It’s human nature. And they followed those biases all the way through to the verdict, ignoring Michael Cohen’s perjury – his outright lies in court – and buying the story from the State that a non-disclosure agreement is a criminal act.

In the show trials, at least the judges tried to hide their bias.

It was too much to ask that Trump at least get a fair shake from Judge Juan Merchan, a Democrat and donor in 2020 to Joe Biden and various progressive political causes. They were small donations, but donations nonetheless. Judge Merchan’s daughter continues to work and benefit financially from her work with Trump’s political rivals. Her firm, Authentic Campaigns, Inc., has raked in millions from Democrats since the indictment. Her clients are fundraising off her father’s actions.

Judge Merchan denied there was a conflict or an appearance of a conflict, and remained on the case. His pretrial rulings did Trump no favors. This bias continued throughout the trial. He consistently twisted the law in the State’s favor. He severely limited the testimony of Trump’s expert on complicated federal election laws, which caused Trump’s attorneys to drop him as a witness. He allowed the State to disobey his order limiting the specifics on Trump’s alleged hotel room encounter with Stormy Daniels.

He improperly constrained the testimony of Trump witness Robert Costello, who was called to rebut Michael Cohen’s testimony and prove Cohen’s lies. He threatened the defense with striking Costello’s testimony when Costello, through no fault of the defense, gave him some attitude on the stand. He denied legally sound objections from the defense and freely granted questionable objections from the State. And during closing, Merchan allowed the State to argue facts not admitted into evidence and gave the State wide latitude in explaining the law to the jury, while denying the defense the same.

But Judge Merchan didn’t stop there. To convict Trump, the jury must have found that he falsified or caused business records to be entered falsely, and that he did so with the intent to deceive and the intent to commit or conceal the violation of New York Election Law § 17-152 (prohibiting the unlawful influence of an election). Judge Merchan instructed the jury that in determining whether Trump conspired to promote or prevent the election by unlawful means, they could consider: (1) violations of the Federal Election Campaign Act (FECA); (2) the falsification of other business records; or (3) violation of tax laws.

About those tax laws. As explained above, one of the “unlawful means” to influence the 2016 election had to do with the violation of New York State, New York City, or federal tax laws. There’s one small problem with this theory: the violation of the tax laws is said to occur in 2017, well after the 2016 election. That couldn’t possibly be a “means” to influence the election. (The “falsification of other business records” theory runs into the same problem.)

You can read all 55 pages of the jury instructions here. They’re complex (even for lawyers), as Trump was charged with violating the false business records law by attempting to violate the election law, which he tried to violate by attempting to violate three other laws. It’s like Inception, but incoherent and in a New York courthouse: a law within a law within three laws.

As an aside, these instructions weren’t given to the jury. This issue has caused some debate on both sides – but really hasn’t been adequately explained. After many on the right voiced concerns about this, Trump critics responded that Judge Merchan was outright prohibited from giving copies of the instructions to the jury. While New York law generally prohibits giving a written copy of the instructions to the jury, a defendant may consent to giving the jury the instructions. People v. Muhammad, 34 NY 3d 1152 (2020) (“Here, the record supports the Appellate Division's finding that defense counsel impliedly consented to the submission of written copies of the court's entire final instructions to the jury.”) We saw nothing to suggest that Judge Merchan asked the defense whether they consented to copies being distributed.

Continuing on, Judge Merchan instructed the jury that they need not be unanimous as to which “other crime” Trump sought to commit. In theory, the jury could have been split in any number of different ways about the three different “other crimes” alleged by the State: 4 jurors could believe Trump attempted to violate the Federal Election Campaign Act, 4 jurors could believe Trump attempted to violate tax laws, and 4 jurors could believe Trump attempted to falsify other business records. And that would be sufficient for a conviction.

This was perhaps Judge Merchan’s most egregious ruling during this whole debacle. The Sixth Amendment requires juror unanimity under Ramos v. Louisiana (applying the Sixth Amendment to the States), but that case doesn’t address whether the jury must be unanimous in agreeing on the “other crimes” referenced in the applicable New York statute. Unfortunately, New York law isn’t directly on point on this issue, though caselaw and general constitutional principles suggest that unanimity should be required:

“this Court has indicated that the Constitution itself limits a State's power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition.” Richardson v. United States, 526 US 813, 320 (1999).

But instead of erring on the side of Trump’s constitutional rights, and consistent with this antagonism towards Trump, Judge Merchan decided unanimity wasn’t required. If there’s any good news, it’s that this is a solid basis for Trump’s eventual appeal.

What comes next? A sentencing hearing to be briefed by both sides.

We’re guessing that prosecutors will probably request incarceration. They will guarantee Trump’s safety to Judge Merchan. They’ll promise that Trump will be housed in the most secure facility, with room for Secret Service protection, and segregated from the general population. Perhaps they’ll tell Judge Merchan that Trump will have his own wing or floor.

They’ll point to Trump’s lack of remorse, the “seriousness” of the charges, how Trump attacked our democracy (apparently the weakest institution on the planet, should they be believed), and to Trump’s social media attacks against the judge and the prosecutors and the witnesses.

And they’ll make those arguments before a judge who agrees. Given Judge Merchan’s behavior throughout this matter, there’s nothing to suggest he won’t sentence Trump to prison. The length of that term could be months or years. At a maximum it would likely be four years, if Merchan decides the counts should run concurrently.

But Judge Merchan has a ton of discretion; Trump could also be sentenced to probation or receive a conditional discharge, should he conclude that “neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate.”

Trump’s team will appeal, of course. And even if he is sentenced to prison, there’s a very good chance that Trump will be free and out on bail pending that appeal.

In any event, it’s a sad day for this country. But it’s not over. November still looms for the Democrats - Biden’s numbers are dismal - and this could very well bolster Trump’s campaign. Judge Merchan knows all this… will it influence Trump’s sentence? Quite possibly.