By Jordan Rubin
Welcome back, Deadline: Legal Newsletter readers. We’re here with a special edition marking closing arguments and the start of deliberations in People v. Donald Trump. We’re officially on verdict watch.
Closing arguments were a marathon Tuesday, with Trump lawyer Todd Blanche giving his summation to start the day and prosecutor Josh Steinglass ending his late in the evening. Blanche hammered away at key state witness Michael Cohen, calling him the “MVP” of liars. Steinglass then recalled the mountain of evidence in addition to Trump’s former fixer, arguing that it’s “difficult to conceive of a case with more corroboration than this one.”
We could probably conceive of such a case, but the state’s election conspiracy cover-up narrative is supported well beyond Cohen. The question isn’t whether this is the most corroborated case of all time but, rather, whether Manhattan prosecutors have proved the falsifying business records charges beyond a reasonable doubt.
“Use your common sense,” Steinglass urged the jury in answering this ultimate question, “and follow the judge’s legal instructions.” Those instructions came Wednesday morning and they’re crucial to the outcome. Manhattan prosecutors must prove that Trump not only caused the allegedly falsified records but also did so with intent to defraud that included an intent to commit, aid or conceal another crime.
Merchan explained to the jury that the other crime at issue is a state law that bars conspiring to promote or prevent the election of any public official by “unlawful means.” Those means may include federal election law violations, tax violations or falsifying other business records — but the jury doesn’t need to unanimously agree on which unlawful means. (Trump and his surrogates later falsely wrote to their millions of social media followers that Merchan wasn’t requiring unanimity for the charges.)
We don’t know how or when the jury will decide this historic case. But it has several options. It can convict the defendant on all 34 counts if there’s unanimous agreement that the state proved them beyond a reasonable doubt. It could acquit on all counts if jurors agree that the state failed to meet its burden. It could fail to reach a guilty or not guilty verdict, leading to a hung jury and possible retrial. Or the jury could reach a mixed verdict of guilty, not guilty and hung counts.
Incarceration isn’t mandatory for a conviction on these low-level felonies. Merchan reminded jurors of that fact after Blanche told them in his closing arguments that they shouldn’t send his client to prison. It was a clear violation by the defense lawyer because the jury isn’t legally allowed to consider possible punishment, which is the judge’s job if there’s a conviction. All criminal lawyers know this. Yet, Blanche’s foul move effectively introduced the subject into the courtroom.
We got a window into the jury’s thinking on Wednesday, a few hours into deliberations. When jurors have questions, they’ll send notes to the judge. That happened twice Wednesday afternoon.
The first one asked for certain details from the testimony of Cohen and David Pecker, the tabloid publisher who testified to the catch-and-kill scheme at the center of the alleged election conspiracy that prosecutors say Trump covered up with false records. The second note asked to rehear Merchan’s instructions, which aren’t sent into the jury room.
It can be dangerous to read too much into jury notes, but overall these clues may be more helpful to the prosecution rather than the defense. Jurors may be confirming the alleged election scheme and the law they must follow. Pecker was the state’s first witness, so they may benefit from a refresher on his words. Whatever the jurors are thinking, it looks like they’re thinking.
But let’s not get ahead of ourselves. As I noted above, the jury has several options on the table for its verdict. Jurors are set to return Thursday morning to hear the requested testimony and instructions. Unless they have many more questions requiring extensive testimony or law read back to them, we could learn their verdict by Friday’s regular newsletter.
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