The New York City Trump trial really is incredibly murky – even with the jury instructions

May 30 – We are at day number two for jury deliberations for the hush money trial in New York City for former president Donald Trump. 

The jury spent four hours yesterday hashing it out. 

They’ve been at it all day today. 

The group did come out yesterday with some questions. They wanted the jury instructions read again to them, as well as transcripts of testimony.  

Pat Ryan of NewsTalk 103.7FM pointed out, “What more and more casual observers I’m finding are noticing this as a questionable trial. You call it a sham. You call it whatever you want here. But if they can do this and make up the rules as they go along, it would appear that if they can do this to Trump, you can’t be too far behind.” 

Attorney Clint Barkdoll said, “I was struck at some of the overnight political newsletters, the headlines that the media has already declared its verdict. I mean, if you watch MSNBC or CNN, Trump is guilty, he needs to go to jail. If you watch Fox or conservative outlets, this whole thing is rigged. If you take a step back from that, there’s 34 charges here. Maybe these jurors are going to spend many, many days pouring over this in a very serious fashion. Nobody knows what these jurors are going to do. Trump seemed to be laying the groundwork yesterday for a conviction. He made that comment that even Mother Teresa couldn’t get a not guilty verdict here. There’s some reporting that his campaign is already positioning to start making some announcements strategically if he gets convicted, but again, nobody knows what’s going on in that room with those 12 jurors. They could do anything from hung jury to acquittal to conviction and maybe a mixture of conviction and acquittal. We’ll see.”

Michele Jansen of NewsTalk 103.7FM said, “I’m so confused and I don’t know how those people trying to deliberate this aren’t completely confused. When you don’t bring out the one crime until after the defense does its final summation to the to the jury and then they bring out this idea of campaign finance issues which is a federal crime, which they can’t really charge in this trial, but then they brought it up as the second crime, the one that all the other ones could make you think of and I think the worst thing and tell me if this is true or not. They’re saying that the way the judge described the jury instructions, you don’t have to all agree on any one of these and we have to remember the fact that there’s 34 because two of them, they multiplied by the number of months a payment was made. So they made that into 10 out of one because it’s really one payment, but there were 10 monthly payments, so we’re going to make that 10 crimes. That’s how they got to this ridiculous number of 34, which is already absurd. But he said you don’t have to be unanimous on any of the individual ones. Then there’s this weird idea that it’s kind of vaguely tied to either campaign crime or tax crime. I mean, can you explain that because it seems to me that that’s why the Trump campaign is saying that. That’s why Biden’s convinced there’ll be a conviction because of this weird way they can look at these charges.”

Barkdoll agreed, “It is very bizarre. As an attorney, I have a problem with all this as well. I mean, the idea that this secondary crime was never disclosed to the defendant until the prosecution makes a closing argument. I mean, I’ve never heard of such a thing. But yet that’s what happened here. These instructions, this issue about unanimity, this is really really complicated. So at a high level, those 34 counts, there must be a unanimous verdict on those 34 counts to find him guilty or not guilty. That’s very clear. It has to be 12-nothing for those. But what the judge pointed out was remember, I keep calling it this alley oop theory, there are misdemeanor charges for the bookkeeping crimes, but then they can be converted to a felony if the jury thinks that the bookkeeping crimes were in furtherance of a another crime and that’s where the judge said, you as the jury if you believe this other crime was occurring, he’s not charged with this quote unquote other crime, so if you think he was engaging in campaign finance violations or tax fraud violations, they don’t have to unanimously agree on that, because he’s technically not charged with that. But yet at the same time, the jury would have to make that leap to convert these misdemeanor charges to a felony. It’s very, very novel and complicated, and I also think if he’s convicted, this is part of the reason why you’re going to see an immediate appeal and there could be merit to an appeal on this because it’s just so unusual the way it’s been done.”

Jansen added, “First of all, this disrupts everybody’s trust in our judicial system and the rest of the world looking at this, I cannot believe that in order to gain power they’re willing to destroy the United States’ reputation for having equal application of the law. Whether you’re the president or a normal person, they say, oh, well, no one’s above the law. Well, they’re putting him below the law. That’s a good term that I heard. They’re actually making it so that, again, you can twist this into some kind of thing where what a jury thinks, their personal opinion, is going to decide whether this is a felony or not. This goes against everything that the United States jurisprudence system is supposed to be about. I don’t know what that does to our reputation in the world. It’s stunning to me that they’re willing to go down this road for power. I can’t see how that’s more destroying our democracy than anything they could accuse Trump of.”

Barkdoll suggested, “I still think the X factor here is we’ve got those two attorneys that are on the jury, and are they taking a leadership role in steering the other 10 in one direction or the other? But you can already see the spin that’s going to emerge. If they come out with a verdict today or tomorrow, if he’s not guilty, Trump and everyone’s going to say the system worked. This jury was so smart. If they convict him, Trump’s going to say it was rigged. This undermines the whole process, and the other side is going to say the same thing. There’s where you really do start to see an undermining of the system. I think the results are baked in.”

A CNN focus group had their own jury watch the trial. 

Barkdoll explained, “The big takeaway was 100%, up and down, Trump supporters said he’s not guilty. Biden supporters said he’s guilty and I think that’s kind of where the country is falling. They’re looking at the trial through the lens of whether they support or don’t support Donald Trump.” 

What about the Independents? 

Barkdoll said, “Independents unfortunately, we’re not part of this focus group. Now there is some polling out this morning, that there is a small segment and I think the number is around 17% of voters, including Independents that say they would be less inclined to vote for Trump, if he’s convicted of a felony. Now, that’s a pretty small segment of the voter base. But if we’re in a 50/50 country, a small swing like that could make a big difference.”

Will the whole trial actually hurt Trump? 

Barkdoll said, “Politically, he has benefited from this from a fundraising and polling standpoint. If he’s convicted, you can kind of envision how he might parlay that into more political advantage. He’s a victim of the system, that everybody’s against him. He’s the underdog. That strategy in an odd way has been working for him the last two months of this trial.”

Jansen suggested, “This is abuse of the process again, making it so confusing that everybody who hates him already is going to say, look, the convict, the felon, and then that will spread to these people that just don’t have the bandwidth to really look into these things. That’s what they’ve been counting on the entire time. I don’t know how you don’t see this as complete election interference, but worst, but now here’s the thing. I don’t know how much it benefits him to overturn it. Can they do it before the election? Because this is outrageous. Is there any way based on the outrageousness and the election interference that they could push this somehow quickly?”

“No,” Barkdoll said, “If he’s convicted in appeals, it will take well past the election to get an answer if it’s overturned. Of course, if he’s found not guilty, it’s over. They can’t re-prosecute it. The same doctrine is true if it’s a hung jury, if Alvin Bragg decides to re-prosecute the case, there’s no way they could retry this before the election. One other point on that about the political angle to this, I sometimes make the point to people, let’s go back a couple years and let’s say Trump did not run for election this time and he was just golfing at Mar-a-Lago living a retired life, keeping a low profile, would these charges had been brought? I think most people would agree the answer is no and if your answer is no, well, doesn’t that answer the question that there’s a political motivation for the timing of these charges and the fact that it’s being tried right now?”