Former Prosecutor Weighs in on Jury Deliberations in Trump’s Criminal Case
Virginia Allen /
The jury in former President Donald Trump’s criminal trial in Manhattan began deliberations Wednesday after closing arguments. The 12-member jury is tasked with determining whether to convict or acquit Trump on the 34 charges he faces.
Manhattan District Attorney Alvin Bragg charged Trump with 34 felony counts of falsifying business records in relation to an alleged “hush money” payment to porn star Stormy Daniels late in the 2016 presidential campaign.
Zack Smith, a former prosecutor who now is a Heritage Foundation senior legal fellow, sits down with “The Daily Signal Podcast” to explain what discussions the jurors likely are having and possible outcomes of the trial. (Heritage launched The Daily Signal in 2014.)
Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: Outside the Manhattan courtroom this morning, Trump spoke to reporters and called the case rigged.
Allen: Joining us now to discuss the case and what to expect from the jury is former prosecutor and Heritage Foundation senior legal fellow Zack Smith. Zack, thanks for being here.
Zack Smith: Of course. Thanks for having me on.
Allen: Zack, what do you make of Trump saying even Mother Teresa couldn’t beat these charges?
Smith: Well, it’s certainly, you know, par for the course with President Trump’s way with words. But I do think it’s an acknowledgment that he’s facing a very tough jury pool here. This is a Manhattan jury, one that is likely not to be very favorable to Donald Trump.
I think it’s also an acknowledgment that the jury instructions that the judge in this case gave to the jury, what he told them the applicable law was, what facts they had defined beyond a reasonable doubt, in order to convict Donald Trump of these charges is not very favorable to Donald Trump. You know, keep in mind, the legal theory behind this case has always been very murky. It’s always been very novel.
Essentially, [District Attorney] Alvin Bragg is trying to bootstrap what would ordinarily be bookkeeping misdemeanor offenses into felony offenses. And the way he has to do that is to show that essentially, these bookkeeping offenses were done with the intent to cover up another crime.
Now, what that other crime is, that’s somewhat of an open question. There’s been a lot made about whether it’s a federal campaign finance offense, which, by the way, the U.S. Department of Justice and the Federal Election Commission both declined to pursue. But it’s possible it could also be a state-level campaign finance offense, maybe a tax-related offense. We’re not really sure.
But the very unfavorable instruction the judge gave to the jury is, essentially, they don’t all have to agree on what the underlying offense would be in order for these bookkeeping charges to be elevated into felonies. That’s a very unfavorable jury charge for Donald Trump. It would be very interesting to see, if he’s convicted, whether that will hold up on appeal.
Allen: Are the instructions that Judge Juan Merchan gave to the jury unusual?
Smith: A lot of the jury instruction is boilerplate. There’s common things that any trial judge in any courtroom around the country would tell the jury, [for example] an explanation of what reasonable doubt is. The difference between direct and circumstantial evidence. Those are typical types of instruction you receive.
Now, some of the instructions were unique to this case, and there were a lot of unique aspects to this case. Certainly, about the he talked about the weight. The jury is entitled to give Michael Cohen’s testimony, other factors that they can consider, in giving weight to that testimony. And then, of course, there were the unique charges related to the specific offenses charged in this case.
And I suspect if there are issues with the jury [instructions] on appeal, again, if Donald Trump is convicted —which, by the way, isn’t guaranteed, but it’s certainly a possibility. That would be what I think those appellate issues would focus on.
Allen: Zack, take us into the room where the jury is. What is the discussion that they’re likely having right now?
Smith: Well, this is the million-dollar question, Virginia. This is something every trial lawyer wants to know. What is the jury deliberating? How do they go about their process, all of those things. And I think we have some idea, you know, typically the jury, they have to go back. They have to get settled in.
Keep in mind, this was a very long trial with a voluminous amount of evidence. We saw that the prosecution took many, many hours just to go through that evidence, trying to essentially overwhelm the jury with the volume of evidence presented. And so it going to take the jury a little bit of time to go through that evidence and sort through it and decide what they have to decide on each count in order for Donald Trump to either be acquitted or convicted.
I will say, Virginia, even though Donald Trump is facing a very unfavorable jury in this case, [former Trump lawyer] Michael Cohen’s testimony on the stand was absolutely disastrous. And I think it’s much more likely today that there’s a possibility that there could be a hung jury, meaning the jury can’t reach a unanimous verdict to either acquit or convict. That is a much more likely outcome today than it was at the beginning of the trial.
But still, as you alluded to earlier, I think Donald Trump’s comments recognize that even still, this is a very unfavorable jury pool. And the instructions the judge gave to the jury were very unfavorable for Donald Trump as well.
Allen: So if a hung jury is within the realm of possibilities, what are the other possible outcomes here, Zack?
Smith: Well, if the jury hangs, if they can’t reach a verdict, certainly Alvin Bragg could retry Donald Trump on these charges. I would certainly hope he would not. But obviously, prudence and good judgment—has it been at the forefront of this case on Alvin Bragg’s part?
The judge could also enter a directed verdict, essentially saying that the prosecution hadn’t met their burden of proof. I doubt he will do that as well, but that is a request that’s still outstanding by the Trump trial team. And then, of course, the jury could also either convict Donald Trump on some or all of the charges, or they could acquit him on some or all of the charges as well.
And it will be really interesting to watch if the jury does convict Donald Trump on some, even some of the charges, even if they don’t convict him on all of the charges, what happens then? Will Donald Trump be sent to some type of custodial setting, Rikers Island, maybe a prison? Will he be sentenced to home confinement, probation?
All of these are the unresolved questions that we’ll have to wait to see, because we’ve never before had a former president facing criminal charges, and certainly not a leading candidate to once again be the president of the United States.