NEW YORK — Attorneys in Donald Trump’s hush money trial argued Tuesday over what instructions a judge will give the jury tasked with deciding the former president’s fate, and defense attorneys repeatedly emphasized that the instructions must say Trump had to have acted willfully to be convicted.
Trump attorney Emil Bove’s requests had a common theme during the high-stakes hearing on jury instructions. Bove wanted Judge Juan Merchan to strengthen Manhattan District Attorney Alvin Bragg’s burden of proof that Trump falsified business records at a felony level.
Bragg had elevated Trump’s charges, which are normally misdemeanors, to felonies by attaching them to the stipulation that Trump also had an “intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof.”
Bragg, an elected Democrat, has not been clear about what other crime, in addition to falsifying business records, he wants the jury to decide the former president committed. Bove assessed that Bragg has tried to tell to jurors, at least in part, that Trump’s “intent to defraud” included Trump allegedly trying to hide a conspiracy with Michael Cohen and the tabloid company American Media, Inc. to influence the 2016 election.
“The government’s argument will be at least in part that President Trump sought to conceal conspiracy. … More emphasis on these intent elements is required,” Bove said.
The hearing, which took place hours after the defense rested its case, delved deep into the weeds of New York’s criminal law. Merchan ran through submitted proposals from both parties about how they want the judge to phrase Trump’s charges in the jury instructions.
The New York criminal courts are notorious for their antiquated docketing system, which prevented the press from having access to the proposals during the hearing and therefore missing key context as Merchan made critical decisions.
The judge appeared even-keeled throughout the roughly three-hour hearing, granting some requests, denying others, and often saying he would reserve his judgments for a written order. He said he expected to finalize the jury’s charging instructions by the end of the day Thursday.
Merchan did appear to deal a blow to Trump’s team, however, saying that if prosecutors proved the former president had an “intent to defraud,” then there was no “separate requirement of intent” for the undefined other crime that the jury would need to consider.
Even proving Trump acted with intent to commit a bookkeeping misdemeanor has been a struggle for prosecutors, however. They have largely relied on Cohen to tie Trump directly to the alleged crimes. Cohen, who pleaded guilty in the past to perjury-related crimes, is widely viewed as having a credibility problem.
One of the other crimes, in addition to falsifying business records, that Bragg has conveyed he wants the jury to consider is that Trump broke federal election laws under the Federal Election Campaign Act.
During the hearing, prosecutors urged Merchan to gloss over aspects of the complex law in his instructions, while Bove pushed for more details to be included.
The FECA offense requires a “willful” aspect, Bove said, noting that it was “critically important to make sure the jury knows” that if Trump’s intent was not criminal, then “we’re stuck with a civil conspiracy.”
Merchan, at times, also told attorneys they could accomplish what they wanted to convey to jurors through their closing arguments, rather than through jury instructions.
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For instance, Bove wanted Merchan to explain in his instructions that a “hush money payment” alone is not a crime. Giving that instruction from the bench “is taking it too far,” Merchan replied, telling Bove he could include it in the defense’s closing remarks.
Merchan said attorneys would begin delivering their closing arguments next Tuesday and that he anticipated giving jurors instructions on Wednesday. He said he would spend about an hour delivering the instructions and that jury deliberations would begin right after that.