At 11:28am on Wednesday, May 29th, 2024, Judge Merchan completed his instructions to the Manhattan jury in the Stormy Daniels hush money case and sent it off to deliberate on whether or not to convict Donald Trump of committing up to 34 felony counts. Trump left the courtroom, although he’s not allowed to leave the courthouse, and immediately claimed that even Mother Theresa couldn’t beat the case the prosecutors assembled against him considering how Merchon instructed the jurors. It’s not clear what in particular he was referring to, as many of Merchan’s directions were favorable to the defense. But, then, Trump is full of bluster and also kind of an idiot. On Monday, he complained that the prosecutors would go last in closing statements, as if this were some novel concept in American criminal procedure: “WHY IS THE CORRUPT GOVERNMENT ALLOWED TO MAKE THE FINAL ARGUMENT IN THE CASE AGAINST ME? WHY CAN’T THE DEFENSE GO LAST? BIG ADVANTAGE, VERY UNFAIR. WITCH HUNT,” he posted on Truth Social.

He seems pessimistic and somewhat dejected that he may soon “become a common criminal.” But he has a puncher’s chance of beating the rap. An outright acquittal¬†seems very unlikely, primarily because his lawyers did not do a good job. I don’t think they really pursued a strategy for acquittal. Their actions only make sense as a kind of hybrid of being hamstrung by a difficult client and a feeling that a hung jury was a more realistic outcome. The case is really about business records, but they spent most of their effort trying to dirty up Stormy Daniels and Michael Cohen. That might help a sympathetic juror find reason and courage to hold out against the others who want to convict, but it did little to provide an innocent explanation for the hard evidence in the case, including Trump’s signatures on the checks made out to Cohen.

It’s simply impossible to believe that Trump paid Cohen nearly half a million dollars without understanding the purpose. Nor is it credible that he would gross up Cohen’s payment to compensate him for income tax he’d have to pay on a reimbursement disguised as legal fees without having an intent to conceal and deceive.

A  second element of the case was proving that the purpose was to protect his campaign. The defense called no witnesses to offer an alternative purpose such as to avoid embarrassment or marital strife.

A lot of the defense was simply laughable. For example, they insisted that Trump never had a tryst with Daniels, which was needlessly damaging to their credibility. And they argued in closing that the Access Hollywood “Grab ’em by the pussy” audiotape was really not a big deal despite overwhelming evidence that it hit his campaign like a meteorite.

These were own goals that a smarter client or better lawyers would have avoided. But that doesn’t mean there won’t be one or more holdouts who refuse to convict. Cohen is a very problematic witness and because he’s an accessory to the charged crimes, per the judge’s instructions, the jury can’t accept his testimony if it lacks corroboration. The prosecution was able to corroborate almost all of Cohen’s testimony but there are a couple of areas where it’s simply his word against Trump’s. Of course, Trump wisely didn’t testify in his own defense, so…

It’s also possible that the jury will convict on some charges and hang or even acquit on others. There are two checks to Cohen that Trump didn’t sign because they weren’t drawn on his personal account. Perhaps the jury could treat the counts on those two checks differently from the others. A third of the charges relate to filing Cohen’s fraudulent invoices, and maybe the jury will find it hard to say Trump “caused” those to be filed as false business records since they originated with Cohen. The strongest charges involve the 10 checks Trump did sign and the ones related to entries in the Trump Corporation’s general ledger. I can’t see any realistic circumstance where a strong majority of the jury won’t be inclined to convict on those indictments.

But there can also be a holdout or two who never were going to convict Trump no matter what the evidence. In that circumstance, the case was doomed before it began. As you can see, there are some complications to consider for the jury even if they’re convinced of Trump’s guilt in a general sense. So, it may take some time to move through each category of charges and decide if a conviction is merited on each and all of them. I can foresee a scenario where a compromise is reached with a skeptical juror to convict on most charges but acquit on some.

Pundits have been all over the place on predicting how long the jury will be out, with some saying a verdict could come as quickly as Wednesday night or Thursday, and others saying they’ll want to be done by the end of the day on Friday so they won’t have to come back next week. Still others say it could drag out for a week or more. In my opinion, it really shouldn’t take too long to review the evidence, so if a verdict takes longer than a day and a half I am going to assume there’s a serious likelihood of a hung jury and a mistrial.

That would be a terrible outcome. That would be a devastating outcome. No matter how long or quick the process is, every moment is going to be a misery knowing that if Trump escapes justice here, he has a very good chance of being reelected. In that case, the world for us and our children won’t be worth living in.

 

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