How Trump’s Jury Trial Was Not Decided By The Jury

by John D. O’Connor

The following is an article originally published on BizPac Review. Read it HERE.

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Donald Trump was recently tried for falsification of business records in the first degree, a felony only if by the alleged falsification Trump intended to commit or conceal another crime. The alleged falsification was in describing the Stormy Daniels nondisclosure payoff as a “legal expense,” a ledger entry made by Trump organization bookkeepers.

While arguably this entry was not false at all, and certainly not “knowingly” false as legally required, the more difficult question for the prosecution was proving a second crime that was intended by the first crime.

After hiding its theories of criminality throughout the case, the prosecution announced at the beginning of the trial that the second crime was New York Election Law 17-152, a “conspiracy to promote or prevent an election” by “unlawful means.” The prosecution during the trial did not specify what these allegedly “unlawful means” were, the key to guilt or innocence.

Throughout this historic criminal trial, the first of any President in the 250 years of our country’s existence, the defendant did not know the essence of the charges against him. Because the prosecution was being coy throughout the trial, it did not present clearly articulated proof of what it claimed these “unlawful means” were. So, the Trump defense lawyers were forced to joust with unknown enemies.

As smarmy as a nondisclosure payment to a porn star might be, it is clear that this payment was not illegal and therefore was not the criminally necessary “unlawful means.” But the jury was never told that all of the Stormy Daniels and Karen McDougal nondisclosure payments were perfectly legal. Indeed, they were presented as the major parts of the “criminal conspiracy.” As we will see, this was a classic bait-and-switch, because the later instructions did not state that they were illegal. 

Proving the required elements of “unlawful means” involved two distinct facts, which were never proven. First, “unlawful” means that the defendant knowingly intended illegality, which is called “specific intent.” One cannot be convicted of a felony for an act he didn’t know was wrong. So, whatever “means” the prosecution chose to charge, it would be its heavy burden to show Trump knew that what he intended to do was wrong, or better put, “unlawful.”

An even more difficult prong of proof involved the word “means”, which the Oxford Dictionary defines as “an action or system by which a result is brought about.” So even if an act may be knowingly “unlawful” it does not thereby prove that it was a “means” to promote an election.

For instance, it is “unlawful” to exceed the speed limit or to ingest methamphetamine. But neither of these unlawful acts could be said to be ”means” to “promote” an election. They are “unlawful” but not requisite “means.”

Without knowing the “means” the prosecution was alleging in this Kafkaesque case, the defense logically, anticipating the “means” would have something to do with election law, called as a witness one of the country’s leading experts, the former Director of the Federal Election Commission, Brad Smith. Smith was prepared to testify that there had been no illegal campaign donation when Michael Cohen advanced (later reimbursed) $130,000 to pay Stormy Daniels. But the Court, clearly improperly, refused to allow such testimony by a supremely qualified expert while the Court, versed in New York law but not federal election law, was not. In short, Smith knew this law and the Court did not. Courts not versed in the law of foreign jurisdictions are encouraged to take expert testimony on foreign law, and experts such as Smith are routinely accepted even in cases not involving foreign law. The only issue should be whether the testimony assists the jury. In this case, the prosecution and Court feared that his testimony would do exactly that, and lead to an acquittal. 

It was not until the evidence had closed and the arguments to the jury had been completed, that the Court trotted out in its instructions what the prosecution’s “theories” were of what constituted “unlawful means.”

Given the lack of direct proof by the prosecution during the trial, especially lacking proof of Trump’s knowing specific intent as to specific acts, it would seem virtually impossible for the prosecution to have proven these theories, which they were now for the first time presented to the jury through the Court’s instructions.

The “theories” of the prosecution of “unlawful means” were that (1) Cohen’s advance to pay Daniels was a “contribution” that exceeded allowable campaign contribution limits; (2) the records of payment described this as a “legal expense” and therefore were false tax records and illegal; and (3) Cohen’s LLC documents were also false records. The jury was not required to be unanimous in selecting any one of these three supposed “unlawful means.”

The fatal problem with (1) was the lack of proof that Trump “knew” that the advance by Cohen was a violation, if it was a violation at all, not proven during the trial. The problems with (2) and (3) were, first, that the records weren’t false; second, that they were not true tax records; and third, and most troubling, they could not constitute a “means” to promote a candidacy. After all, no voters saw these records and they were not presented to the public in campaign ads. And as to all of the above, the prosecution did not prove that Trump “knew” any of these acts were illegal, and therefore none was proven to be “unlawful.” 

The more serious of these shortcomings was the lack of proof that these supposed illegalities were “means” to promote Trump’s candidacy. Even the allegedly excessive contribution of Cohen did not “promote” Trump’s election and were not campaign contributions at all. And certainly, records buried in Trump Organization file cabinets did not “promote” the election. As Smith would have testified, even if Cohen’s advance was considered to be a contribution, these problems are usually handled civilly, not criminally, because the law is so unclear as to whether a debt owed by the candidate to his lawyer is a “knowing” campaign violation. Also, since payment to a mistress could not possibly be a valid campaign expense, such a payment of it by Cohen cannot be a campaign contribution.

So, given these virtually insurmountable hurdles in the proof, and given that the prosecution did not address these issues specifically during trial, wouldn’t the jury have had no basis for finding that these actions were either “unlawful” or constituted “means” to promote an election? That would be true if the jury was allowed to decide these issues. But it was not.

That is because the Court instructed the jury that these three hypothesized “theories” in fact constituted “unlawful means.” All the jury had to find is whether any of these three scenarios occurred.

Here is how the Court instructed the jury, essentially telling it that each of these theories were indeed “unlawful means” as a matter of law, not a matter of fact to be determined by the jury: 

In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

The Court further instructed that a “loan or advance” of over $2700 was a campaign contribution; that an illegal tax record could be any document that a taxing authority may look at; and Michael Cohen’s LLC formation documents were false records they could consider. The jury did not have to decide whether or not these acts were “unlawful means.” The Court was instructing the jury that they were “the following” unlawful means! The Court thereby decided these two key issues for the jury. All the jury needed to decide is whether or not the business records existed or whether Cohen’s “advance” was more than $2,700, or, alternatively, that the companion records involving Cohen’s LLCs were false. The jury did not have to decide the very difficult question of whether these constituted a “means” to promote an election, or whether they were “unlawful”. 

In case it wasn’t clear that the Court’s instructions made Trump’s conviction inevitable, the Court also instructed that Michael Cohen was Trump’s “accomplice as a matter of law”, not a matter of fact for the jury to decide. So, the Court instructed the jury that Cohen was a criminal in the matter of his dealings with Trump in the Stormy Daniels matter. How could Trump be innocent, if Cohen was his guilty accomplice? Impossible.

The Biden forces often speak about how Trump is supposedly an enemy of democracy But one of our most cherished democratic institutions is the jury trial system, protected by the Sixth Amendment right to a jury trial as well as the constitutional right of due process under the Fifth Amendment, which requires notice of charges against the defendant. Yet Trump was convicted in a bizarre trial in which he did not learn of his alleged wrong until after the evidence was completed. He was convicted not by a jury that found that what he had done constituted “unlawful means” to promote an election, but by a Court aligned with Trump’s political enemy, who in essence instructed the jury to find Trump guilty.

History will indelibly record this trial which features the Court’s instructions. These instructions memorialize one of the saddest days in American jurisprudence, and a blight on our history. They will live forever in infamy.

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John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of the books, Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate and Began Today’s Partisan Advocacy Journalism and The Mysteries of Watergate: What Really Happened.