Trump’s own defense and judge’s instructions led to guilty verdict

Former President Donald Trump went from having a clean record to becoming a felon after a Manhattan jury found him guilty in the criminal hush money case last week — in part due to his imperfect legal strategy and damning instructions given by the judge.

Legal experts say Trump’s conviction can be traced to the defense’s strategy from the beginning of the weekslong trial. Trump insisted the verdict was “rigged” and driven by politics after a jury found him guilty on Thursday of all 34 counts of falsifying business records to conceal hush money reimbursements made to his ex-attorney Michael Cohen.

Trump’s inability to gain an acquittal or a mixed jury verdict could be the fault of the judge and the former president’s defense tactics, some legal experts have written in the days since the verdict.

Former Assistant U.S. Attorney Andy McCarthy for the Southern District of New York said Trump’s strategy in the hush money trial was riddled with “ill-conceived, self-destructive defenses” that helped Manhattan District Attorney Alvin Bragg, an elected Democrat, secure “his coveted convictions.”

Trump and his defense team insisted on telling voters and jurors that porn star Stormy Daniels and Playboy model Karen McDougal, two women who said they had an affair with Trump that he, in turn, tried to conceal with hush money payments, were lying about their claims.

“The reason for this is clear: Trump insisted that his lawyers subordinate his defense at trial to the political narrative he wants to spin in the 2024 campaign,” McCarthy wrote for the National Review.

The conviction, in turn, has unified elected Republicans in support of Trump against what nearly all GOP lawmakers have described as an unfair legal process. Despite being found guilty on 34 counts, Trump has maintained his innocence and denies the affairs.

Trump’s repeated denials of the sexual encounters were significant, especially in the context of concerns about his wife, Melania Trump, and his youngest son, Barron Trump, who was a child at the time of the alleged 2006 affair with Daniels. Even if the affair between Trump and Daniels did happen, the former president may have denied it still to save embarrassment for his family.

“Politically speaking, this is dumb because voters long ago made up their minds about Trump’s extramarital affairs, and if he admitted them at this point, he’d merely be admitting what is notorious and not credibly deniable,” McCarthy wrote.

Other questionable decisions by Trump’s legal team may have factored into his courtroom loss, such as keeping two lawyers on the 12-member jury. The defense team also told the jurors it would call up a Trump Organization accountant as a witness to explain why the payments to Cohen were categorized as legal expenses, but Trump’s attorneys did not do that.

Trump also made the decision not to testify despite wanting to get his side of the story out, according to attorney Todd Blanche. While his reason for declining to testify is not exactly known, the prosecution would have been able to cross-examine him on a long list of past legal entanglements in New York civil court cases.

Blanche told CNN’s Kaitlan Collins on Thursday evening that Trump always listened to his defense team’s counsel but admitted, “Ultimately, it’s his decision. … And he reached the decision that he thought was right, which I very much agreed with.”

Another area in which the defense may have faltered was keeping the case entirely about Cohen’s credibility problems while only calling on Robert Costello, an adviser to Cohen when he was subject to federal investigation, as a witness to impeach his testimony. Much of Blanche’s closing argument focused on painting Cohen as a liar, possibly leaving holes in the defense’s narrative if jurors did not buy into the primary theory that Cohen had invented claims about Trump.

In the end, the key witness testimony appeared to come from David Pecker, the former National Enquirer publisher who testified that he agreed to be Trump’s “eyes and ears” for negative stories about him ahead of the 2016 campaign. Jurors last week asked to rehear testimony about Pecker’s 2015 meeting with Trump and Cohen in which they said they plotted an effort to bury any damaging reports that may come out about Trump.

For all of the defense’s flaws, Bragg’s indictment contained its own flaws, given that the underlying falsification of business records charges are ordinarily misdemeanor offenses that have a two-year statute of limitations. But prosecutors insisted for this Trump case that the charges could be upgraded to felony counts because they accused Trump of doing so with the intent to commit “another crime.” They did not specify until the end of the trial that the other crime involved a violation of New York’s election law with the commission of an unspecified additional crime, on which, the judge decided, jurors did not need to be unanimous.

“You may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws,” the judge’s jury instructions read.

The jury guidelines basically allowed the jurors to agree that Trump falsified the records in order to convict but did not require unanimity about what the three predicate offenses were. Given this significant disadvantage to Trump on the instructions, his supporters say Trump could only ever prove his innocence before New York’s appellate divisions or even its highest court, the Court of Appeals.

Veteran appellate lawyer Alan Dershowitz, who has for months said the hush money indictment was a “zombie” case dating back to when former District Attorney Cy Vance declined to bring charges, suggested that the jury trial was flawed in part because it pooled jurors from a jurisdiction in which only 5% of the population voted for Trump in the last election.

Dershowitz implied the prosecution’s failure to call in former Trump Organization CFO Allen Weisselberg and not include him as a “missing witness” instruction to the jury is likely one of many grounds for an appeal. Additionally, the gratuitous information about Trump and Daniels’s alleged sexual encounter that was told to the jury was likely a significant factor in swaying him away from testifying on his behalf.

“This is a winnable appeal. This is an appeal that a first-year law student could win if the defendant’s name wasn’t Donald Trump and it wasn’t New York,” Dershowitz said.

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A 30-day clock for Trump’s legal team to appeal will begin following a July 11 sentencing hearing, in which the judge will determine what punishment Trump will have to face, such as house arrest, jail time, or fines. Legal experts have suggested there may not be any detention for a first-time offender, though several have said that Judge Juan Merchan could factor in the 10 times Trump was found in contempt for violating his gag order in the case.

Sentencing for Trump is also slated to come just days before Trump becomes the Republican nominee for the 2024 election at the Republican National Convention, raising the stakes in an election year in which the outcome may determine whether a candidate gets sent to prison.