If you’ve been keeping up with former President Donald Trump’s hush-money trial in New York, you may have encountered the startling news that Judge Juan Merchan issued surprising and seemingly unconstitutional instructions to the jury on Wednesday. He advised jurors that they need not agree on what crime Trump allegedly committed to deliver a unanimous guilty verdict.
You read that correctly. Judge Merchan indicated that the jury could return a guilty verdict without consensus on whether Trump committed election fraud, tax fraud, or falsification of business records. He essentially split the jury into three groups of four, stating that if the jurors were divided 4-4-4 on the crimes Trump committed, he would consider that unanimous. Guy Benson described it on X as akin to a “choose your own adventure” jury instruction.
To comprehend these instructions, one must first grasp the convoluted theory underlying the prosecution’s case. Manhattan District Attorney Alvin Bragg indicted Trump on 34 counts relating to claims that Trump directed his former lawyer, Michael Cohen, to pay “hush money” to Stormy Daniels to hide an alleged past affair, and then falsified business records to categorize the payments as legal fees instead of campaign expenses.
Ignoring that labeling such payments as campaign expenses would violate federal campaign finance law, Trump’s alleged falsification of business records would only be felonies if they supported another crime Trump intended to commit or conceal. What crime was that? The prosecutors have been ambiguous. No one definitively knows what crime, if any, the alleged falsification of business records was associated with.
Even after closing arguments, it’s unclear what underlying crime Trump sought to conceal. During closing arguments earlier this week, Merchan allowed the prosecution to repeatedly claim that Trump committed federal campaign violations, which is untrue. He then said the prosecution had mentioned three possible crimes constituting 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 don’t need to agree on which of these crimes occurred, Merchan said, but could reach a unanimous verdict as long as the agreed crime was in furtherance of another crime.
But it gets worse. Merchan barred Trump’s defense lawyers from informing the jury that no campaign finance violations had happened, then allowed prosecutors (who made their closing statement after the defense) to falsely claim that federal campaign finance violations had occurred. The judge didn’t correct or clarify any of this for jurors before sending them to deliberate.
Now that the oral arguments have concluded, the prosecution’s case hasn’t strengthened. It appears so weak that Merchan is ignoring basic legal norms to secure a conviction, discarding even basic logic. How can a jury reach a unanimous verdict if they don’t agree on what occurred?
The only way to understand this is to recognize that it’s not about the law or justice but about power. Denying Trump fundamental constitutional rights, like due process, as Merchan has repeatedly done, demonstrates that Trump lacks power compared to the New York Democrats seeking to imprison him before the November election. This was evident in the unintentionally humorous press conference with actor Robert De Niro held by the Biden campaign outside the courthouse this week.
These displays of power aren’t just to demoralize Trump and hinder his presidential campaign; they’re also designed to demoralize his millions of supporters nationwide. They are meant to convey that their chosen leader is being defeated, and they should submit to those who currently hold power: the Democrats.
It’s also more than that. It’s a warning. If they can do this to Trump, imagine what they could do to you.
