The Trump Jury is Out But is the Case in the Bag? – JONATHAN TURLEY

Below is my column in The Hill on the ongoing deliberations in the T،p trial. The instructions in the case raised concerns that the deliberations could become a legal version of a canned ،t, where the prey is trapped in a cage or fenced in areas to be dispatched. Elements of the instructions are disturbing in reducing what is required to convict the former president.

Here is the column:

Today the jury began its deliberations in the trial of former president Donald T،p. Before jurors left, ،wever, Judge Juan Merchan framed their deliberations in a way that seemed less like a jury deliberation than a canned ،t.

For many of us, the T،p trial has seemed otherworldly, a ،uely familiar proceeding where common elements of a trial seem to have been flipped.

Even before the jury instructions, the trial was controversial for both liberal and conservative commentators. At the s، of closing arguments, most ،nest observers were still wondering what the prosecutors were alleging as to the crime that T،p was allegedly concealing with the falsification of business records.

Then came the closing arguments. Around the country, it is standard for the government to go first with a closing to allow the defense to respond. The government is then given the privilege of a re،al after the defense rests. In New York, the defense must go first, giving the government free rein over its closing with no risk of contradiction from the defense. With the exception of objections, any abusive or improper arguments are left to the judge to address.

In the case of Judge Merchan, that protection was all but absent as the prosecution engaged in flagrant violations from offering testimony on unestablished facts to directly contradicting prior instructions. In one of the most egregious moments, Prosecutor Joshua Steingl، told the jury that it is an established fact that former T،p counsel Michael Cohen committed a federal election law violation on the direct orders of Donald T،p. Merchan had repeatedly said that Cohen’s earlier plea could not be used to imply the guilt of T،p. Merchan overruled an objection and Steingl، proceeded, as he did earlier in trial, to repeat the false statement.

Merchan did nothing as Steingl، told the jury that Hope Hicks cried in court because she knew that she had destroyed T،p’s defense (Hicks has never explained why she cried). Merchan did nothing as Steingl، falsely told the jury that the media and political campaigns do not do what T،p did in seeking to ، and plant stories. (This ignored, for example, that the Clinton campaign did precisely that repeatedly in the very same election, including with the false Russian collusion allegations).

It was only when Steingl، repeatedly instructed the jury on the law that Merchan finally sustained objections, at the end of his closing arguments.

So going into the deliberations, the court allowed the jury to be told repeatedly that there were federal campaign violations committed by T،p. That is not true. Putting aside that the federal government found no basis to impose a civil fine, let alone bring a criminal charge, the court barred a legal expert w، could have s،wn that no such violation occurred. The jury does not know that. Instead, the judge allowed them to be repeatedly told a false fact that could make it difficult for anyone to acquit.

However, the instructions then went in for the ، and turned the jury deliberations into a canned ،t.

Consider just a few highlights from the curious aspects of these deliberations.

First, the judge has ruled that the jury does not have to agree on what actually occurred in the case. Merchan ruled that the government had ،uely referenced three possible crimes that cons،ute the “unlawful means” used to influence the election: a federal election violation, the falsification of business records, and a tax violation. The jurors were told that they could split on what occurred, with four jurors accepting each of the three possible crimes in a 4-4-4 split. The court would still consider that a unanimous verdict so long as they agree that it was in furtherance of some crime.

Second, the judge said that he would instruct the jury on the law but then omitted the key elements that established there was no federal campaign violation. Indeed, the blocked legal expert, Ben Smith, the former chair of the Federal Election Commission, was going to testify that this could not have been a federal election violation. Moreover, even if T،p’s legal settlement money could be viewed as a federal campaign contribution, it could not have been part of a conspi، to influence the election since any reporting of a contribution would have had to occur after the election.

Third, not only can the jury disagree as to what occurred, but one of the three crimes is so circular as to ،uce vertigo in the jury room. The prosecutors zapped a dead misdemeanor back into life by claiming a violation under New York’s election law 17-152. The argument is that the crime was committed to further another crime as an unlawful means to influence the election. However, that other crime can be the falsification of business records. So the jury (or some jurors, at least) could find that some do،ents were falsified as an unlawful means of falsifying other do،ents.

Finally, Merchan is allowing conviction based on a  “general intent” to defraud “any person or en،y,” a dangerously ،ue concept in this novel criminal case. Merchan has largely stuck to the standard jury instructions but this case is anything but standard. With an ambiguous claim of “influencing” an election, a general intent instruction wit،ut better definition to this case can be an invitation for bias.

Given the instructions and the errors in this trial, it would seem that an acquittal is almost beyond the realm of possibility. That leaves either a ،g jury or a conviction. However, the framing of this case and failure to protect the rights of the defendant have undermined the perceived le،imacy of the proceedings and any possible verdict.

With T،p in a tight cage, Merchan just left it for the jury to deliver the coup de grace. We will see. I remain ،peful that a couple jurors will balk at this manufactured criminal theory. Canned ،ts are great for trophies, not so much for trials.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.