Jury back in court for 2nd day of deliberations

Judge Juan Merchan in a courtroom sketch.Judge Juan Merchan in a courtroom sketch.

Judge Juan Merchan as seen in a courtroom sketch on Thursday. (Jane Rosenberg/Reuters)

Supporters of former President Donald Trump, many of them commentators on right wing news outlets like Fox News and Newsmax, have taken issue with the instructions Judge Juan Merchan gave to the jury, sometimes falsely claiming that the judge is allowing them to convict Trump without coming to a unanimous decision.

On Wednesday, Fox News host Jesse Waters proclaimed that Merchan had told the jury they “can pick whatever crime they want, and they can all disagree on the crime and it’s still a unanimous decision. … It’s like a buffet!”

Fox News co-host Jeanine Pirro, a former judge, said his jury instructions were “unheard of.”

But in his remarks to the jury, much of which he repeated on Thursday, Merchan told jurors that they “must conclude unanimously that a defendant conspired to promote or prevent the election of any person to a public office by unlawful means.” What he did leave partially open to interpretation, however, was the specific means jurors could conclude Trump had used when he carried out his alleged conspiracy.

While falsifying business records is usually a misdemeanor charge, it rises to a felony when the false reporting is done in furtherance of another crime. In this case, the judge told the jurors that while they needed unanimous agreement that a second crime had been committed, they could choose from one of three options: violations of the Federal Election Campaign Act, the falsification of other business records or the violation of tax laws.

Because Trump is not specifically charged with those crimes, jurors do not have to vote unanimously on them. Instead, he is charged with 34 counts of falsifying business records relating to the $130,000 hush money payment made to adult film actress Stormy Daniels. For those charges, the jury must vote unanimously.

University of Texas law professor Lee Kovarsky explained the judge’s instructions to the jury this way:

“If a law says NO VEHICLES IN THE PARK & list of vehicles includes mopeds and motorcycles, all the instruction means is that you need unanimous conclusion of vehicle but not unanimous on whether vehicle was moped or harley,” he wrote in a post on X.

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