Preparing for the Verdict
The jury in Trump's election interference trial could convict him soon. Here’s how MAGA is spinning it, and how sentencing could go.
UPDATE: The jury in Manhattan found Donald J. Trump guilty on all 34 counts of falsifying business records in the first degree. His sentencing date is July 11, 2024.
The jury now has the case in the Manhattan criminal trial of Donald Trump on charges of felony falsification of business records. There has already been a full day of deliberations, and on Wednesday afternoon the jury sent two notes to the judge requesting that certain testimony and the jury instructions be re-read. All this indicates that the jurors are taking their responsibilities very seriously.
A guilty verdict remains a distinct, and even likely, possibility. Indeed, in his public pronouncements, Donald Trump seems increasingly resigned to it. Meanwhile, his allies have already begun a bad faith campaign to undermine a possible guilty verdict, which could come at any moment.
For their part, Trump’s lawyers are banking on at least one rogue juror to dig in and hang the jury, causing a mistrial. To that end, closing arguments by the defense went where every criminal defense lawyer knows they shouldn’t. Trump’s attorney Todd Blanche suggested to the jury that they think twice before “sending a man to prison”—something that is not up to the jury to decide. A visibly angry Judge Juan Merchan admonished the defense, calling the statement “outrageous” and highly inappropriate.” He remarked, “It’s hard for me to imagine that was accidental” and had to provide a curative instruction to the jury.
In today’s piece, I’ll take a closer look at the signs that a guilty verdict may be in the works, including a closer review of the notes passed to the judge by the jury so far. I’ll also survey how Trump and his allies are moving preemptively to call the verdict into question. Finally, I’ll discuss what happens next should the jury issue a guilty verdict and what it means for Trump personally and for his campaign to regain the White House.
Tea leaves from the jury
Towards the end of the first day of deliberations, the jury sent a note out from the deliberation room. The judge reconvened everyone in the courtroom, and nerves were frayed as the requests were read aloud.
There were four requests in this note, three having to do with David Pecker and one to do with Michael Cohen:
David Pecker's testimony regarding the phone conversation with Trump while Pecker was in the investor meeting,
Pecker's testimony regarding life rights for Karen McDougal,
Pecker's testimony regarding the Trump Tower meeting, and
Michael Cohen's testimony regarding the Trump Tower meeting.
Some analysts saw these as good signs for the prosecution. Kyle Cheney, Senior Legal Analyst for Politico, noted that “this is not welcome news for Trump. Prosecutors spent a lot of their lengthy close focusing on [the] value of Pecker's testimony. This is the roadmap they asked jurors to follow.”
Pecker’s testimony about his conversations with Trump and Cohen, and the fateful Trump Tower meeting itself, were all about the illegal catch-and-kill conspiracy. My own hot take is that if the jurors are now asking about that, that is bad news for Trump. After all, if they believe the defense’s argument that there were no false business records to begin with, then it would have been game over for the prosecution, and none of the catch-and-kill evidence would matter. Their inquiries about Pecker indicate that they don’t buy the primary defense.
Notably, as Anna Bower of Lawfare observed, the jury did not ask for testimony that could tend to call Cohen’s credibility into question. Instead, the requested information concerned the scheme to bury stories—the illegal election conspiracy kicker that turns a misdemeanor falsification of business records charge into a felony.
I should add some caveats here. It’s very possible that these notes emerged because there are jurors who need further convincing, and that’s why they needed to hear the testimony of Pecker and Cohen read back. There may be some dispute or uncertainty around Trump’s level of involvement and how much he knew. But all in all, this first note was not great for the defense.
Then, right near the end of the first day of deliberations, a second note dropped: "We, the jury, request to rehear the jury's instructions." It’s unclear whether this meant all of the jury instructions or just some of them.
New York is a bit odd when it comes to jury instructions. The written instructions, though complicated, are not sent in paper form back to the deliberation room with the jury. This helps prevent juries from being bogged down in the technical wording of the instructions rather than their basic gist. So if jurors have questions about the instructions, they need to ask to hear them again and take notes, which is what happened here.
Expectation setting from Trump, bad faith from his allies
The defendant himself, apart from falling asleep during the reading of the jury instructions, gave indications that he is preparing for a guilty verdict. Perhaps his lawyers have told him that the case against him is a strong one. Perhaps some part of prosecutor Joshua Steinglass’s five-hour closing argument, which Trump blasted as “BORING” and a “FILIBUSTER,” finally sunk in.
Speaking to reporters outside the courthouse, Trump repeated his claim that Judge Merchan is “conflicted” and “because of the confliction, very, very corrupt”—before comparing himself to (checks notes) Mother Teresa. Yes, this happened:
“Mother Teresa could not beat these charges. These charges are rigged. The whole thing is rigged. The whole country's a mess."
Trump is priming his base to reject a guilty verdict by claiming the charges themselves are stacked against him, so stacked in fact that even a saint could not beat them.
To this he added the false claim that he was denied the right to assert an “advice of counsel” defense, when in fact his own lawyers made it clear in their papers that they would not seek such a defense.
Trump’s supporters in the media and in Congress have also pressed bad faith arguments in the court of public opinion to undercut the credibility of a guilty verdict. A chief example was a statement by Fox anchor John Roberts, who tweeted,
Judge Merchan just told the jury that they do not need unanimity to convict. 4 could agree on one crime, 4 on a different one, and the other 4 on another. He said he would treat 4-4-4 as a unanimous verdict.
This is a gross mischaracterization of the instruction that Judge Merchan gave, and it is highly misleading. The felony “kicker” crime that Trump allegedly tried to cover up through falsifying business records is election interference under New York law. That law says that it’s a crime to use unlawful means to attempt to sway an election.
In his instructions to the jury, the judge merely reiterated existing New York law that those “unlawful means” could be any number of things. To show that Trump intended to commit election interference, the jury need not agree on which unlawful means he used, just that they were unlawful.
Professor Lee Kovarsky provided a good example of this. He noted that the crime of burglary involves breaking into a building with intent to commit a crime. It has always been the case that a jury need not agree on which crime the burglar intended to commit, such as larceny or arson or both. If the break-in occurred with an intent to commit any crime, it’s burglary.
But the basic workings of the law didn’t stop high-level GOP officials from repeating some version of Fox’s bad faith argument. Sen. Marco Rubio (R-FL), who is hoping to be picked as Trump’s VP, tweeted this piece of misinformation and compared the Trump trial to those in (checks notes) the former U.S.S.R.:
Judge in Trump case in NYC just told jury they don’t have to unanimously agree on which crime was committed as long as they all at least pick one
And that among the crimes the [sic] can pick from are ones Trump WASN’T EVEN CHARGED WITH!!!
This is exactly the kind of sham trial used against political opponents of the regime in the old Soviet Union
Sen. Rubio mixes up his crimes here. Returning to our burglar, if he entered the building intending to commit arson, but didn’t actually light anything on fire because his matches were wet, he might not be charged with arson. But he may be charged properly with burglary, based on his intent to commit a crime when breaking into the building.
The goal of Trump’s allies’ misdirection is to call the very proceedings and rule of law into question in order to invalidate the increasingly likely guilty verdict. “They didn’t even have to be unanimous” is now a likely talking point for the right, but it is false and misleading in the extreme.
If Trump is found guilty, when would he be sentenced and for how long?
Despite all the discussion around Trump’s guilt or innocence and the now strong possibility of a guilty verdict, very little has been written about what happens next. When will Trump be sentenced, and will he really be sent to jail, for example?
Felony falsification of business records comes with a penalty of up to four years, and technically speaking, Trump is charged with 34 counts of it, one for each instance of recording the Stormy Daniels reimbursement as “legal expenses” or writing a check to “gross up” Michael Cohen’s payments for tax purposes.
As The New York Times noted, all of the charges are class E felonies, which are the lowest category of felony in the state. If Trump is convicted on more than one count (which is very likely if he is found guilty of any), Judge Merchan would likely impose a concurrent sentence, meaning he would serve time on each count simultaneously.
That means Trump is likely looking at anything from probation to four years in jail. A mixture of the two with a light sentence is also possible, for example, six months of jail and then six months of probation. Weekend jail time is also a possibility. If you think famous, wealthy people who are first-time offenders cannot be sentenced to prison for covering up a crime, Martha Stewart would like a word.
Judge Merchan will have a great deal of discretion over what sentence to mete out and when. As former Manhattan prosecutor Duncan Levin observed, unlike federal law, New York law isn’t very clear about when and how sentencing takes place.
“It's much more informally done in state court. I've had cases where the jury comes back and says, ‘guilty,’ and the judge thanks the jury, and excuses them, and says, ‘Let's sentence the defendant right now,’” said Levin. “Obviously, everything's a little different about this case than the typical case.”
Realistically speaking, we shouldn’t expect Judge Merchan to issue a sentence right away. Because he is considering a historic possible jailing of an ex-president who is also the presumptive GOP presidential candidate, Judge Merchan will want to create a strong record to back up his decision. A sentencing 30 to 60 days out from the verdict is more likely.
Legal analyst Norm Eisen looked at some of the sentencing factors that the judge will likely consider. Chief among them was how other defendants who were found guilty of similar crimes have been sentenced historically. His research showed that since 2015, the District Attorney’s office in Manhattan has filed 166 felony counts against 34 parties for falsifying business records. While most did not involve jail sentences, some of them (around one in ten) resulted in prison time, even when the most serious charge was falsifying business records in the first degree, as is the case here. In other words, it is not without precedent to send the worst violators of this law to prison for some time.
Eisen then reviewed some other considerations that might make it more likely that Trump is among these worst offenders. For example, Trump’s underlying crime could be seen as more egregious than that of others found guilty of felony cover-ups using falsified records. Here, Trump tried to conceal a very serious crime, i.e., an election fraud that might have impacted the entire 2016 election.
Further, Trump has been unrepentant in the extreme, and lack of remorse is definitely a consideration that can affect a sentencing.
The same goes for a defendant’s history and character, and when it comes to Trump, he has already been found to have defrauded banks and insurers out of hundreds of millions, sexually assaulted and defamed E. Jean Carroll (again, without remorse and with continuing defamatory statements), threatened witnesses including the judge’s own daughter, and been held in contempt and repeatedly violated gag orders.
Judge Merchan would be well within his rights to take all of that into consideration and impose a sentence with some amount of jail time.
Would Trump go to jail right away?
We need to be clear-eyed about how unlikely it is we will see Trump in an orange jumpsuit before the election.
Even if Judge Merchan sentences Trump to jail, Trump will almost certainly be out on bond pending exhaustion of his appeals, which could take months or even a year or more. Incarceration through the appeals process would be unusual given that Trump is charged with non-violent offenses, and he has no criminal record, at least not yet.
Further, Judge Merchan will seek to minimize any perceived disruption to the presidential campaign, beyond the conviction and the sentencing themselves. Forcing Trump to campaign from jail would be highly disruptive and could feed the false idea that all these charges are designed to take Trump out of the running for president rather than hold him accountable for crimes.
How would a guilty verdict impact public opinion?
Recent polling continues to suggest that if Trump is found guilty of a felony, he will lose support, at least around the edges, from those who are still on the fence. But just how much is unclear.
An ABC News/Ipsos poll this month found that 16% of Trump’s supporters would “reconsider” their support if he is convicted of a felony, while 4% said they would leave him altogether. Most voters who “reconsider” a candidate wind up coming back, given the strong pull of tribalism in politics.
Looking at the critical swing states, a Bloomberg/Morning Consult poll of seven battleground states back in January found 9% of Republican-leaning voters would be “somewhat” unwilling to cast votes for Trump if he is convicted of a crime, while 14% said they would be “very” unwilling to vote for him. But that was several months ago, and the GOP disinformation machine has been working overtime to take the sting out of the verdict.
Voters’ rejection of Trump, however, doesn’t necessarily mean more support for Joe Biden. According to the polls, Republican voters disillusioned about a felony conviction would overwhelmingly move their votes to a third-party candidate, not to the Democratic one.
But even that would still spell potential disastrous electoral consequences for Trump, which could explain why he is now seeking to rally the GOP around the idea that any conviction would be illegitimate and the entire legal system is rigged against him.
The bottom line is that a candidate with a recent felony criminal conviction is a much harder sell to voters. Those who decide to still pull the lever for Trump must do so knowing he is a felon, which will put them on the spot around the dinner table. Acceptance of Trump will soon equate to utter rejection of the rule of law, no matter how you slice it.
And for a critical number of voters in key swing states, that may prove a bridge too far. For a critical number of less extreme voters, any felony conviction could provide a reasonable off-ramp for those looking to part ways with the MAGA cultists.
But what if the jury hangs?
This all of course assumes that there isn’t a lone holdout on the jury who will seek to create a mistrial. I’ve written about why that is possible but still unlikely given the voir dire process and the difficulty of hiding extremist views from the lawyers.
But if the deliberations drag out without resolution for very long, the chance of a hung jury grows. Around one out of every 20 jury trials results in a mistrial, so it’s always a risk. If the Trump jury hangs, the DA could decide to re-try the case immediately, so perhaps all would not be lost.
A long period of jury deliberation does have a silver lining, however: Trump is required to remain in the courthouse for the duration of the deliberations so that he would be available immediately should the jury return a verdict. That wait has got to be both excruciating and boring for Trump.
Not even Mother Teresa could bear it.
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Lock. Him. Up. Judge Merchant should throw the book at him not only for these crimes, but for his threats yesterday against the jury and his repeated violations of the gag order!
Thanks Jay. You mention the appeal of a guilty finding and that Trump would be out on bond. I never heard what the outcome was in the bond dispute re: the E. Jean Carroll suit. The last I heard, it was clear that the bond did not meet the state's surety requirements. Then the story seemed to just die. Anyone know the status?