OK, it's official. Donald Trump's "other crime"—the one that turns a falsification of records from a misdemeanor into a felony—can be anything from a menu of three choices. CNN has a good description of the judge's instructions to the jury this morning:
Judge Juan Merchan explains that the jury must determine whether Trump conspired to promote a person to or prevent a person from public office by unlawful means. They must be unanimous on that fact but not on the unlawful means. Merchan explains the prosecution has three theories of those unlawful means:
- Violations of the Federal Election Campaign Act, otherwise known as FECA
- Falsification of other business records
- Violations of tax laws
Merchan then explained that different jurors can have different opinions about which of those three laws Trump intended to break. All that matters is that all 12 jurors agree about Trump's intent to violate at least one of them. They don't have to be unanimous about which one.
pretty much what anyone paying attention to the trial already knew. that instruction to the jury is vitally important.
Yeah, this is what everybody who knows anything about the law and prosecutions already knew. I thought Kevin knew it, too, and his recent confusion is confusing.
You're close but you're still skipping a step.
Misdemeanor Falsifying Business Records becomes a felony if you have the intent to commit "another crime." The judge's instructions only point to one crime:
"Section 17-152 of the New York Election Law 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. "
The "unlawful means" there can be any of the three other crimes you mentioned. But this is the single "other crime".
"All of them, Katie."
I mean, yeah, jury instructions are now official. If that's what you were complaining about, I suggest not looking for them in the closing arguments.
I find your confusion very confusing, honestly.
If you don't like the "menu" approach, say so. I understand why some people find that noteworthy.
If you let yourself be confused by shitty reporting, well, congrats, you're a real American now. But that's also a different thing.
The prosecution itself has been straightforward and competent, clearly laying out their theory, facts and connective tissue.
Seems very clear to me. '
Jury doesn't haven't to agree on the other crime, but they are not convicting him of the other crime. Jury still needs to be unanimous on the charges he's indicted for (34 counts of "falsifying business records in the first degree").
Yet the Trump/Fox disinformation machine will be going nuts trying to make it seem Trump is the victim of a rogue judge. See John Roberts: "Judge Merchan just told the jury that they do not need unanimity to convict." Sounds bad. But it's not.
Drum linked to CNN, so he is still relying on reporting. I’ve mostly been doing that too, but I read the judge’s instructions to the jury myself, and the judge did a really good job of explaining things.
Unless you’re physically in the courtroom, how could anyone not be “relying on reporting” to know anything about this case? It’s not being televised l, so everyone but courtroom attendees are hearing what happened secondhand from someone else.
just curious re any potential sentence (i know, i know...)
anyway, i've seen comments saying that if this is your first offense, there's no jail time
but there must be something re the severity of the underlying charge; cheating for a local council seat isn't the same as cheating for potus
but i stand ready to be schooled on the fact that the laws are really that stupid
"but there must be something re the severity of the underlying charge; cheating for a local council seat isn't the same as cheating for potus"
Falsifying business records (to cover up the payments to Cohen) was the underlying offense while campaign finance violations were the secondary offense that boosted the first charge up to a Class E felony. And yes, it's rare to get jail time in NY for Class E felonies w/o special circumstances, such as it not being one's first offense. But Trump's behavior during the trial has been so appalling that the judge may decide he needs some time for an "attitude adjustment" in jail in addition to a substantial fine. It's really all up to the judge.
I suspect that in most cases, the defendant pleads guilty and gets a lighter sentence, both because the admission of guilt suggests remorse and because the judge knows that New York State cannot afford to stage a six week trial every time someone falsifies business records. I couldn’t find much information on New York sentencing practices on the internet, but did discover that David Adelhardt pleaded guilty in to falsifying business records in the first degree in 2015, but not to any other crime, and was “expected to be” sentenced to a year of serving two days a week in jail.
sentencing trump to two days a week would be interesting
lc
I have previously opined that I didn't think Trump would be jailed but after reading kenneth's post regarding D. Adelhardt AND reading about the judges instructions to the jury I can now see where jail time (part time or whathaveyou) might be a possibility.
My question this. Considering HE is an EX president WITH a secret service detail assigned to him does New York operate any "Club" Fed jails?
It's not Trump's first offence. He has ten counts of contempt of court.
Compare the reactions to the Trump verdict / sentence and what happens in the upcoming Hunter Biden trial and you'll find the loudest voices complaining about the principle of the damned thing will take exactly the opposite stance in a few weeks
I read about the shock to the country it would be if Trump were sentenced to jail. The horror, the horror. I'm tired of hearing about it because "the country" is not worried about the precedent of a former president going to jail for committing a crime. Practically every person I know is worried about the precedent of a guy like Trump getting away with crimes again and again and again and never paying the price for it.
personally i'd like to see jail time for the deterrence effect, just to make future trumps think twice
and an actual sentence would force the system to work out the logistics of incarceration so we'd never again have to hear how the secret service can't do their job in a cell block
if anything, i think that makes their jobs easier since they're already in a secure facility
Exactly.
We've known this since February. Read the judge's ruling on the motion to dismiss starting on page 11.
Here's the link to ruling.
https://www.nycourts.gov/LegacyPDFS/press/PDFs/People-v-DonaldTrump2-15-24Decision.pdf
KD: I think you may be mistaken here. Each element of a crime needs to be proven beyond a reasonable doubt so I greatly doubt a each member of a jury can pick their preferred element. I would imagine each element would need to be unanimous.
nope; they don't have to agree on each element
Although you must conclude unanimously that the
defendant conspired to promote or prevent the election of any
person to a public office by unlawful means, you need not be
unanimous as to what those unlawful means were.
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.
https://static01.nyt.com/newsgraphics/documenttools/d458fdbff3cd7a41/84784522-full.pdf
just guessing, but maybe it's a semantic thing involving the word 'element'
the jurors all have to agree that there was a violation of the element "promote or prevent the election... by unlawful means"
but they can differ on which of those three enumerated crimes satisfies the element
IANAL but it doesn’t seem much different than proving that you kidnapped someone with the intent to do something else to them too. Maybe rape them. Maybe murder them. Maybe use them to extort money from a loved one. Maybe some combo of all the above. Whatever, but all the jury has to do is agree that you kidnapped the person for whatever sick twisted purpose to send you to jail for it.
Same here: maybe you falsified business records to defraud a bank into giving you a bigger loan. Maybe it was to cheat on your taxes owed. Maybe it was to get around campaign contribution limits. Maybe some combo of all the above, which are all crimes for anyone else who does them. You still just need to decide if business records were falsified to send his ass to jail.
To clarify, and to respond also to comments below, the jury indeed must unanimously agree on each ELEMENT, but not on the MEANS by which each element is satisfied. The difference between elements and means is often a matter of how the statute is written. Here is the US Supreme Court:
The question before us arises out of the trial court's instruction about the statute's "series of violations" requirement. The judge rejected Richardson's proposal to instruct the jury that it must "unanimously agree on which three acts constituted [the] series of violations." App. 21. Instead, the judge instructed the jurors that they "must unanimously agree that the defendant committed at least three federal narcotics offenses," while adding, "[y]ou do not . . . have to agree as to the particular three or more federal narcotics offenses committed by the defendant." Id., at 37.
...
In this case, we must decide whether the statute's phrase "series of violations" refers to one element, namely a "series," in respect to which the "violations" constitute the underlying brute facts or means, or whether those words create several elements, namely the several "violations," in respect to each of which the jury must agree unanimously and separately. Our decision will make a difference where, as here, the Government introduces evidence that the defendant has committed more underlying drug crimes than legally necessary to make up a "series." (We assume, but do not decide, that the necessary number is three, the number used in this case.) If the statute creates a single element, a "series," in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three. On the other hand, if the statute makes each "violation" a separate element, then the jury must agree unanimously about which three crimes the defendant committed.
Richardson v. United States, 526 US 813 (1999)
As it was explained to "Little Marco:"
https://www.alternet.org/marco-rubio-trump/
I read the instructions and I stand corrected. It appears the jury may disagree as to the exact nature of the underlying crime. But unless, the jury is unanimous as to one of the three actions (or all three) I think this could constitute reversible error but not sure how we would find out.
Prosecutors alleged that Trump intended to commit, aid or conceal a violation of state election law section 17-152. That statute, Merchan said, "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 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."
Trump's attorneys had asked the judge instruct the jury that they would have to unanimously agree on what "unlawful means" were used in this alleged scheme.
"The court rejected that because not that's not the law of New York," McCord said. "New York says the jurors don't, all 12, have to agree what the unlawful means are here."
Merchan said jurors can consider three unlawful means: a violation of federal election law, falsification of other business records or violation of tax laws.
"Trump's counsel recognized when he argued for something different last week that that's New York law, but what he had said is basically in these extraordinary circumstances where the statutes are being used here with respect to a former president, and in these circumstances, we think it's within the judge's discretion to require unanimity," McCord said.
https://www.salon.com/2024/05/29/thats-not-the-law-expert-rejects-lawyers-complaints-about-judges-jury-instructions/
And of course Trump's moutpiece is gonna demand dat the joiry retoins thoiteen "Guilty" votes.....
Intent to violate then is the crime, --like a lot of DJ Pussygrabber's crimes.
another question re sentencing...
isn't incarceration more likely in cases where the defendant refuses to accept responsibility and shows no remorse?
'cuz we know trump's never gonna admit to anything since that's totally off-brand
It is, but remember white collar crime never gets anywhere near even a quarter of the maximum sentence.
And I don't think that is even the most suitable sentence. Make him do community service. Put him in an orange jumpsuit and have him pick up trash on the subway. Or mop floors in a homeless shelter. Make him look ridiculous in public.
I would just put him under house arrest with absolutely no internet or phone or visitors beyond family members and with all his snail mail screened. That sentence alone would destroy his remaining sanity.
Tried to read CNN. But after 19 stories all about the same damn thing over and over and over (read back transcripts), I gave up. This guy must be paid based on the density of his comments.
The “other crime” wasn’t *finally* explained at the last minute. Although they didn’t appear in the indictment (because there was no requirement to include them), those three options were spelled out in pre-trial filings months before the trial began.
You know, Merchan issued that ruling on that particular jury instruction over a week ago.