The Trump-a-verse is currently inflamed claiming the judge in Trump’s hush money business fraud trail improperly instructed the jury that their verdict did not have to be unanimous. They claim this is a violation of the United States Constitution, which by Supreme Court precedent, requires unanimous verdicts in criminal cases.
The judge’s instruction to the jury is well founded in New York case law related to this statute. Starting with the basics, Trump was convicted by the jury for causing the falsification of business records. The statute amplifies that to a felony if the falsification was for the purpose of concealing another crime. Notably, the other crime does not even have to have been committed. It is sufficient if the purpose was the concealment of possible criminal activity.
To be clear, the jury had to unanimously find (and did unanimously find) that Trump caused the falsification of business records.The jury had to also also unanimously find Trump did so for the purpose of concealing another crime. What they didn’t have to unanimously agree on is what that other crime was, so long as they all agreed there was some other crime he was trying to conceal by falsifying the business records.
The prosecution outlined three potential law violations Trump might have been trying to conceal and presented evidence supporting all of them:
1. Federal campaign finance law (for which Michael Cohen was convicted for his role in the scheme).
2. State election fraud law.
3. Tax records law.
So just creating a hypothetical, suppose four jurors believed Trump intended to conceal #1, but not #2 or #3. Four more jurors believed Trump intended to conceal #2 but not #1 or #3, and four more believed Trump intended to conceal #3 but not #1 or #2. For this hypo also assume all the jurors separately agree that Trump caused the falsification of business records.
So, simple logic question. In this scenario do all the jurors agree that Trump caused the falsification of business records to conceal another crime? Yes, or no?
The answer is obviously “yes.” They may not agree on which crime he sought to cover up, but they all agree that Trump caused the falsification of business records to conceal another crime, which is all a direct reading of the statute requires.
This was an interpretation previously litigated in another application of the statute that went through the New York appellate courts, and Judge Merchan was bound by it. There is nothing weird about this. While a jury must unanimously conclude a defendant committed a crime, they are not generally required to have unanimity on exactly how the defendant committed the crime.
It should also be noted that any suggestion the jury did not unanimously agree on the so-called “underlying crime” is pure speculation. The jury did not have to say and it didn’t. The jury may well have unanimously agreed that Trump broke one of those three laws, or all of them.
It is also worth noting that this entire Trumpist argument is that their presidential candidate merely committed 34 counts of misdemeanor criminal fraud, as if that is okay and not scandalous enough. Shouldn’t the standards for a President, charged with enforcing the law, be higher than that?
