Let’s get the obvious out of the way: Manhattan District Attorney Alvin Bragg, a rogue prosecutor, never should have brought his case against Donald Trump.
But here we are, with a jury of 12 Manhattan residents being asked to decide whether the former president committed 34 felony offenses.
And the only reason they are being asked to decide whether Trump committed 34 felony rather than misdemeanor offenses is because Bragg has sought to turn these ordinarily misdemeanor booking charges into felonies using a novel legal theory—essentially that Trump committed the bookkeeping offenses with the intent of covering up another crime.
But what is that other crime? And what does Bragg, a Democrat, have to prove about that other crime? Those questions have been present throughout the case, but catapulted to the forefront Wednesday after Judge Juan Merchan gave startling instructions to the jury.
For those unfamiliar, the instructions the judge gives to a jury tell the jurors what the applicable law is for the case they’re deciding. Here, Merchan told the jury that to convict Trump of falsifying business records in the first degree under New York Penal Law § 175.10, Bragg must prove—beyond a reasonable doubt—that Trump intended “to commit another crime or to aid or conceal the commission thereof.”
But the judge also told the jury that Bragg “need not prove that the other crime was in fact committed, aided, or concealed.”
That other crime? According to Merchan, it would be a violation of New York Election Law § 17-152, which “provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election.”
One of the law’s key—and confusing—phrases is “to promote or prevent the election … by unlawful means.” (My emphasis.)
Merchan told the jury that to convict Trump, all 12 jurors “must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, [but they] need not be unanimous as to what those unlawful means were.”
Buckle up, because this is where things get weird.
Merchan told jurors that those unlawful means could include violations of the Federal Election Campaign Act. They could include falsifying certain other business records, including bank records and tax forms. And they could include certain alleged state and federal tax law violations.
But again, all of the jurors don’t have to agree which one of these three unlawful means Trump used—and never mind that the federal government previously declined to pursue any federal campaign finance violations against Trump.
Even rabid Trump haters who argue that this sort of instruction could be permissible under New York law anticipated that Merchan might “require unanimity anyway, just to be safe, rather than unnecessarily risking a guilty verdict that might not hold up on appeal.” Well, obviously he didn’t.
It’s understandable why Trump lamented after deliberations began Wednesday that even “Mother Teresa could not beat these charges.”
Love him or hate him, all Americans should be troubled by the perversion of our criminal justice system that this prosecution has proven to be.