In this legal review, Professor Gregory Germain examines the next step in the Donald Trump hush money trial: jury instructions that are expected the week of May 27.
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The public and the press have been riveted by the parade of celebrity witnesses testifying in the first criminal trial of a former United States President. While the public and the press speculate about whether Donald Trump really had a one night stand with Stormy Daniels, or whether the jury liked or believes Michael Cohen’s testimony, those factual questions pale in comparison to the fundamental legal issues that Manhattan District Attorney Alvin Bragg has to prove to obtain a proper conviction.
At this point in the trial, the jury likely has no idea what this case is really about. What comes next is the most important part of the trial, by far, where the jury is told what they have to find in order to convict Trump of the charged crime.
The first and most important step in presenting the law to the jury will be Judge Merchan’s jury instructions. The jury instructions tell the jury what is the law that they must apply. Proper jury instructions will identify the separate legal elements of the crime(s) that must be proven for a conviction. Improper jury instructions will gloss over the legal issues, and make it more likely that a jury, who may not like the defendant, will convict, but also more likely that any conviction will be overturned on appeal.
The charges against Trump are that he violated New York Penal Law § 175.10 by falsifying business records. The business records state that Trump paid attorney fees to Michael Cohen, rather than stating that some portions of the payments were really to reimburse him for the hush money payments he made to Stormy Daniels. Although Trump has tried to impeach Michael Cohen’s credibility, there is really no logical alternative to his testimony that Trump was aware of Cohen’s hush money payments and agreed to reimburse him.
Penal Law Section 175.10 requires a showing (1) that Trump, with the intent to defraud, [made or caused to be made] false entr[ies] in an enterprise’s business records,” and (2) that “his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” See NYPL §§ 175.05, 175.10.
Thus, the two elements require the District Attorney to prove that Trump intended to defraud, and intended to cover up a separate crime when he made or caused the false business entries.
The judge held preliminary discussions about the jury instructions on Tuesday. Trump argued that the jury instructions should specifically require the jury to find that the false business entries were made to “defraud” someone out of money or property. There has been no evidence admitted at trial to suggest that business records were falsified to defraud anyone out of money or property, which is the normal meaning of “fraud.” But there are some appellate division cases interpreting “defraud” to mean “mislead.” The prosecutor argued that the instructions should gloss over the requirement by suggesting that the business records were falsified to mislead the public.
But there is a problem with the DA’s argument. The false business records were made in 2017 after the 2016 election was over. They were private business records that were not disclosed to the public. How could they have been made with an “intent to defraud” the public when they were made after the election and without disclosure to the public?
There was no evidence in the trial to show why the records were falsified. I suspect that a decision was made to make the hush money payments through Cohen so that Trump’s fingerprints would not obviously be on the payments. That might preserve some measure of deniability, although not much. Payments made by one’s lawyer are usually on one’s behalf.
But Trump did not deny making the payments. So the public was not misled or “defrauded: in any way by the records.
Early in the case, the District Attorney suggested that Trump might have been disguising the payments to commit tax fraud. But the DA introduced no evidence to support that claim. Trump asked Judge Merchan to prevent the District Attorney from arguing the tax fraud point. The District Attorney argued that falsifying the payment as income to Cohen rather than a reimbursement was a “tax law violation,” but Trump pointed out that there is no evidence that anyone received a tax benefit from the characterization. The court did not rule on the issue.
If the judge does not clarify the legal issues, the jury will surely be confused about the requirements, and the basis for the jury’s verdict may be unclear.
Similarly, the parties argued about instructions concerning David Pecker’s testimony, which suggested that there was a conspiracy to catch and kill stories. That indeed might have been a crime, but it has nothing to do with the business entries that are the basis for the charges. If anything, that is a separate matter that is very prejudicial and not probative of the business records charges. The judge’s failure to instruct the jury not to consider character evidence about other crimes in determining whether Trump committed the charged business records violation may make verdict difficult to sustain on appeal.
The DA’s second requirement is to show that the business records were falsified with the intent to conceal a separate crime, separate from the “defraud” requirement. The DA has indicated that the separate crime is New York Election Law § 17.152, which makes it a misdemeanor to “conspire to promote or prevent the election of any person to public office by unlawful means.” This is circular since the separate crime itself requires conduct that uses “unlawful means.”
There is, I think, a theory for establishing a conspiracy to commit a separate crime, but it has nothing to do with the separate conspiracy involving David Pecker. Michael Cohen’s payment to Stormy Daniels was a loan made to Trump, and could be characterized as being made to influence the election. Campaign loans, like campaign contributions, are subject to campaign finance limits, so Michael Cohen’s loan might be an illegal campaign contribution. Trump conspired with Cohen to make the illegal campaign finance contribution loan. Therefore, Cohen violated federal campaign finance law, and Trump violated New York Election Law § 17.152 by conspiring with Cohen to do so.
The problem with this theory, however, is the intent requirement. Covering up the obscure New York Election Law and the federal campaign finance violation must have been the reason for making the payment through Cohen, and there was no evidence that either Cohen or Trump were aware of these rather obscure state or federal election law provisions in connection with the loan. Intending to hide a porn star payment seems very different from intending to hide an election law violation. It does not make sense that they would structure the payment through Cohen, which created an election law issue, if they were aware that it created an election law issue. Having Trump’s lawyer make the payment surely provided very little cover to Trump. Unless they were very foolish, they were likely unaware that they were doing anything illegal by running the hush money payments through Cohen.
So we do not know what Judge Merchan’s jury instructions will say, but he seemed to be leaning towards ambiguity rather than clarity, as he has throughout the case. Ambiguity might allow the jury to reach whatever determination they want based on their feelings for the parties and their conduct, rather than on the basis of the law. The testimony at trial shows a lot of sleazy and unethical dealings by Trump, Pecker, Stormy Daniels and Michael Cohen. By failing to distinguish the sleazy and unethical, from the illegal, the judge may obtain a conviction but it will be much less likely to be upheld on appeal. And ambiguity will continue to play into Trump’s political narrative of an unfair prosecution.
Judge Merchan’s independence is on the line in these jury instructions, and he should rightly be judged in the court of public opinion by the care and clarity used in his jury instructions in a case as complex and confusing as this one.
After the jury instructions are completed, the parties will make their closing arguments. This will be the District Attorney’s opportunity to make the case, based on the evidence, that Trump falsified business records to defraud and to commit the separate crime of conspiring to unlawfully influence the election.
Then Trump’s attorneys will have an opportunity to point out the statutory requirements, and to argue that the evidence does not meet the legal requirements of the charged crime.
It will then be up to the jury to decide whether the crime has been proven.