On Possible Trump Verdicts

 

On Possible Trump Verdicts

May 24, 2024

Donald Trump’s criminal trial in Manhattan will end next week. Closing arguments are scheduled to begin on Tuesday. We don’t know if they will end on Tuesday, though if I were a juror I would hope they would. After closing arguments, the jury will begin its deliberation. There is no way to know how long they will take to reach a verdict. It was a fairly long trial with a good deal of testimony and documentary evidence. There is no way to know before it is announced what it would mean if the jury reaches a verdict quickly. There is no way to know what it means if the jury takes a long time to reach a verdict. The whole country, I suspect, or at least most of it, is highly anxious for this case to end and for us to know what the jury decides, which of course makes no difference in what the jury will do. It will, at the very least, be interesting when we do learn what the jury’s verdict is. No former president has ever been tried for felonies before. This jury’s verdict will be an historic first.

Trump is charged in this case with the felony of falsifying business records for the purpose of committing or concealing another crime. Under New York law, falsifying records without more is a misdemeanor not a felony. The prosecution in this case apparently contends that Trump falsified the business records to cover up a violation of state election law. As I understand it, the prosecution must prove the falsification and the cover up beyond a reasonable doubt. It does not have to prove the underlying crime beyond a reasonable doubt, and the jurors don’t have all to agree on what the underlying crime was, just that there was one.

There are, I think, three possible verdicts the jury could reach, though I’ve never heard any supposed expert on TV talking about one of them. The jury could acquit Trump of all charges. Given what we know of the evidence that was presented in court, this one seems unlikely, but you never know. The verdict in this case would be “not guilty.” It wouldn’t be “innocent.” Technically speaking, all a not guilty verdict means is that the jury found that the prosecution did not prove its case beyond a reasonable doubt. The defendant may well still have done what he was charged with, it’s just that the prosecution didn’t sufficiently prove it. All the jury would say is “not guilty.” At least in its verdict, the jury would say no more than that though the jurors could probably explain the verdict further after they are discharged if they wish.

Or the jury could find Trump guilty as charged. At that point, Donald J. Trump, former president of the United States of America and Republican candidate for the presidency in this year’s election, would be a convicted felon. Think for a moment about how monumental that would be. Our governments operate under written constitutions at both the state and the federal level. The federal constitution has a balance of powers written into it in an attempt to stop any one branch of the government from controlling either of the other two. But constitutional democracies work only if the people who hold office under them are decent people who are committed to protecting the constitution, something our president swears to do in the presidential oath but Trump did not do when he was president. We’ve had really bad presidents before, but we’ve never had one of them ever be a convicted of a felony. A guilty verdict in this case, whatever its fate on the appeal Trump would surely file, would be historic indeed.

I believe that there is a third verdict the jury could reach. At least I know that this verdict would be possible under Washington state law, Washington being the state in which I live and in which I practiced law for many years. If New York state law is like Washington state law on this subject, the jury could find Trump guilty of the lesser included offense of falsifying business records without an intent to commit or conceal another crime. In that case, Trump would be guilty only of a misdemeanor not of a felony. Many of us would find this verdict disappointing, but I suppose convicting a former president of a misdemeanor is rather significant in its own right.

Trump’s reaction to two of these verdicts is easy enough to predict. If he is found not guilty he will proclaim that the verdict proves that the prosecution was a political witch hunt done by Democrats to interfere with his chances of being elected again. This prosecution is no such thing, but truth has never stopped Trump from saying anything. So if he is acquitted he will crow. He will excoriate the prosecutors and the judge for having tried him in the first place. He will say the verdict proves that he didn’t do what the prosecutor said he did. A not guilty verdict doesn’t necessarily mean that, but Trump will certainly claim that it does, an most Americans will believe him. A not guilty verdict would no doubt improve Trump’s chances of winning our upcoming presidential election.

If the jury finds Trump guilty as charged, he will scream bloody murder. He will continue to rant and rave about the case being a Democratic witch hunt carried out only for political purposes not for legal ones. He will continue to play the victim, and millions of his supporters among the American people will believe him. He will file an appeal as soon as he can. I have no way of knowing what his grounds for appeal would be; but even if he has none that anyone else would take seriously, he will certainly appeal. A guilty verdict may or may not negatively affect Trump’s chances of winning the election in November.

I find it harder to know how Trump would react to being found guilty of a misdemeanor but not of a felony. That would be a sort of a forty-sixty compromise decision. It would give a little something to the prosecutor and a bigger something to Trump, acquittal on the charge that could have landed him in jail for up to four years. Trump would perhaps claim that he was exonerated because he got off on the felony but that the prosecution was still illegal and his conviction on the misdemeanor was politically motivated and invalid.

As nearly as I have been able to determine from the television coverage of this trial, the case has proceeded according to the usual laws and court rules that govern such trials. The prosecution has to meet the very high standard of proof of beyond a reasonable doubt to get a conviction. Trump, all of his squealing to the contrary notwithstanding, has been given all of the due process rights every criminal defendant has. New facts can, of course, always come to light, but as of now there seems to be nothing irregular about Trump’s trial. That, however, matters to Trump not at all. The truth never matters to him. Only his personal power matters to him. We have no way of knowing what the jury will decide. Perhaps we’ll find out next week. I sure hope we will.