And just how did Donald Trump intend to violate New York State’s Election Law? In one of three ways; “[i]n 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 law.”
Incredibly, when describing these three different laws, each of which represents a different theory of the case, Judge Merchan told the jury that “[a]lthough 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.”
These instructions form a basis for two different arguments on appeal.
First, returning to the issue I discussed in The Making of a Martyr, a defendant is entitled to know specifically what the charges are with which they are charged, in order for that defendant to be able to prepare a defense against those charges. How could Donald Trump or his lawyers prepare a defense to charges which were not revealed to him until trial?
As is stated in the Criminal Resource Manual of the United States Department of Justice, “[i]f an essential element of the offense is omitted from the indictment, it cannot, consistent with the principle underlying the Fifth Amendment requirement that prosecution for an infamous crime be instituted by a grand jury, be supplied by the prosecutor or by the courts. As stated in Russell v. United States, 369 U.S. 749, 770 (1962): ‘To allow the prosecution, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.'”
There can be no doubt that the illegal action described above is exactly what happened in the case of Donald Trump. The Grand Jury did not return an indictment describing any violation of New York State’s Election law, nor did it enumerate any violations of Federal Elections Law, falsification of other business records, or violations of any tax laws. Instead, the Grand Jury only described “other crimes” as the predicate for the felony charge of Falsifying Business Records.
In other words, the New York County District Attorney and Judge Merchan both presented charges to the jury that were not included in the indictment.
Further, Judge Merchan’s instructions regarding the “other crime” of the “falsification of other business records” is described, in truly circular fashion, as acting “with intent to defraud, he or she makes or causes a false entry in the business records of an enterprise.” But isn’t that the primary charge? How does one falsify business records with the intent to commit a crime, by falsifying business records with the intent to commit a crime?
Second, these instructions violate the necessity for a unanimous verdict. Though Judge Merchan informed the jury that their verdict must be unanimous, at the same time, regarding the “other crimes,” he informed the jury that “you need not be unanimous as to what those [other crimes] were.”
So you don’t have to be unanimous, while reaching a unanimous verdict?
Under the Sixth Amendment to the US Constitution, “jury verdicts must be unanimous to convict a defendant of a non-petty offense in both federal and state criminal trials. For federal criminal trials, the Supreme Court’s recognition of this unanimity requirement is long-standing, dating back at least as far as the late 1800s. But for state criminal trials, it was not until 2020 that the Court held for the first time, in Ramos v. Louisiana, that the Sixth Amendment unanimity requirement applies by incorporation via the Fourteenth Amendment.”
In fact, New York State Attorney General Letitia James “led a coalition of nine Attorneys General in an amicus brief urging the Supreme Court to recognize that the U.S. constitution requires unanimous verdicts by juries for convictions in state felony trials” in Ramos v. Louisiana. “’We have fought hard to guarantee that every American has the right to serve as a juror, and that every jury is drawn from a fair cross-section of our local communities,’ said Attorney General Letitia James. ‘Setting a nationwide standard that requires verdicts to be unanimous will ensure that juries actually consider the diverse views of all their members, rather than ignoring minority viewpoints that may reflect important experiences and varying perspectives.’”
What did AG James have to say about Judge Merchan’s allowing a non-unanimous verdict in the former President’s case? “No one is above the law,” is all she had to say on the issue.
This is, or course, only one issue (in several parts) that can be argued on behalf of Donald Trump in his appeal of his New York County criminal conviction. There are also grounds for appeal based upon the failure to allow the defense to present witnesses on their behalf, and on prejudicial statements and rulings made by Judge Merchan throughout the course of the trial.
But even if the appellate courts were to only consider this one issue, the conclusion is inescapable – former President Donald Trump did not have a fair trial, and the violation of his rights began at the very beginning of the case – with an unspecific and unlawful indictment.
Judge John Wilson served on the bench in NYC
Photo: Judge Merchan