Days 22 and 23: “Guilty, Guilty, Guilty, Guilty” and 30 More “Guiltys”

I wrap up my six-week coverage of the Trump Trial

Wednesday, May 29, 2024

Today is the day Judge Merchan will instruct the jury, and deliberations will begin. Exciting!

I caught a break this morning on the seating and got into the front row (for the press) on the left side of the courtroom. That’s why the photo of Donald Trump in The Washington Post in the moments before court was in session shows a blurry me in glasses with my hand across my chin just over bearded Don Jr.’s left shoulder. You may need a magnifying glass to see me, but I did want to introduce it into evidence as proof that I haven’t been bullshitting you all these weeks about being there. 

That’s me in the top right. Photo: (Jabin Botsford/The Washington Post

I made a point of watching Donald Trump roll in heavy with his sorry (i.e., pathetic, not apologetic) entourage. Because I’ve seen him swagger up and down the center aisle more than 150 times over the last six weeks, I’ve grown a bit blasé and sometimes have my head over my laptop and miss it. Not today.

I also wanted to make sure not to miss my favorite part of the trial: when jurors enter and exit a few feet from him and look straight ahead, soldiers for justice. I wanted to see if Juror #2, the one everyone is worried might go rogue, nodded at Trump, as others (not me) say they have seen him do in the past.

So, I focused my binoculars on the spot where the jurors would pass the defendant. The rules prohibit using binoculars during sidebars (to prevent lip reading), and they must not be focused on the small screens in front of the lawyers and the defendant because the screens may contain confidential information.

Just after I raised my binoculars, the chief court police officer, a hulking six-foot-three redhead I call “Gingerbeard” (not to his face), told me to take them down. Gingerbeard was normally cordial, with a really hard job that he performed with impressive competence. This was the first time I had been busted by him, so I protested mildly that I wasn’t looking at anyone’s screen. But he had a point: I could see Trump's screen between me and where the jurors passed. “Down!” Gingerbeard said, and I hastily complied.

Moments later, the Honorable Juan Merchan began a hugely important part of the trial: 

“I will now instruct you on the law,” he told the jury in a measured and winning way. “The level of my voice or intonation may change, but that is only to help you understand,” he said. “You are the judges of the facts.”

Unlike many other states, New York, for some reason, does not allow the jury to have a written copy of the judge’s “charge” — his instructions. Merchan told them that any notes they took during the trial or now could not be used to override what other jurors remembered without notes.

The facts are overwhelmingly on the prosecution's side, but the law that jurors must apply to the facts is murky. So, this will be an unusually complex charge.

Essentially, jurors must decide if they can cross a narrow bridge that I think of as two attached causeways. They will have to find that Trump intended to cause the conspiracy to interfere in the election, then caused the falsification of business records and “other crimes” (unspecified in the statute) to conceal what he and his posse did.

Republicans have seized on this vaguely-written law to try to discredit the case. But as Jimmy Breslin said in 1984 after Bernhard Goetz (“the Subway Gunman”) shot three unarmed Black teenagers in the back and most of Phil Donahue’s TV audience thought he hadn’t broken the law: “You’re wrong! It’s in a book — a law book!” Same thing here. There’s a law, whether Fox-types like it or not.

Merchan is from Queens, but his similarity to Breslin or Trump ends there. In dulcet tones, he said, “Remember, you have promised to be a fair jury” and must not “permit bias on account of race, origin, age, or sexual orientation.” 

That was standard fare, but Merchan’s repeated references to “stereotypes” were specific to this case and valuable to the defense. The judge reminded jurors to be “mindful of any stereotypes about people or groups of people…We all hold unconscious views that may come from stereotypes and may influence a very important decision about another member of the community.” He wasn’t done yet: “Make sure your verdict is based on the evidence, not on stereotypes or attitudes. Justice requires no less.” Then: “You must set aside any biases you have in favor or against the defendant.”

Not exactly the words of the imaginary judge Trump fulminates about: A “bad man” who is “biased” and “corrupt” and running a “rigged” trial.

Merchan instructed the jury on the meaning of the word “inference.” To explain that one can infer “based on proof from other facts,” he made an analogy. He told jurors to imagine they woke up and it wasn’t raining, but they saw people with umbrellas: “It’s an inference that it rained while you were sleeping.” He told them to use “reason, common sense, and experience” to infer.

The section on his “limiting instructions” included specific references to David Pecker’s non-prosecution agreement with the government, the Federal Election Commission’s investigation of the Stormy Daniels payment, and Michael Cohen’s plea deal on violating campaign finance laws. Merchan said these facts were admitted into evidence “for context [in assessing] Michael Cohen’s credibility.” But he stressed a few times that they must not be used as “evidence of the defendant’s guilt.” The same went for clips from The Wall Street Journal. 

If Trump is convicted, all of this will be endlessly hashed out on appeal. Some of it already has: Trump’s lawyers have filed 15 appeals in this case and lost them all.

I saw Juror #2 — the one Trump hopes will hold out for him — taking notes on the limiting instructions. Did that mean anything? Probably not, but it’s a sign of how nervous people are.

Alina Habba, the “attorney” so contemptible in the E. Jean Carroll civil case that the judge threatened her with jail time, was sitting next to Donald Jr. two rows up. She hadn’t silenced her phone, and suddenly, a loud voice could be heard throughout the courtroom. It was a Fox announcer a day earlier saying, “Closing arguments have begun in the trial…” before Habba turned it off.

Most of Merchan’s instructions did not differ from the norm: “The People must prove every element of the crime.” If they don’t, “you must find the defendant not guilty.” At the same time, if the People satisfy their burden of proof, “you must find the defendant guilty.” In deliberating, “the burden of proof never shifts.”

His definition of reasonable doubt was…reasonable. “It is an actual doubt, not an imaginary doubt…Very few things we know with absolute certainty…It is not sufficient to prove a defendant is probably guilty…the decision must not rest on speculation."

The judge seemed to be speaking directly about Cohen on the stand when he said, “It is the quality of the testimony that is controlling….You may disregard the entire testimony [of a witness] or accept it if you find it truthful and accurate.” He added, “If a witness had a motive to lie…you may consider it.” Even so, “you are not required to reject testimony if a witness has lied.”

One might think this would interest Trump, but of course, it didn’t. I trained my binoculars on the video monitor that showed him from the front and noticed he had been asleep or at least resting his eyes for 20 minutes, which is typical for him. He finally woke up and asked Emil Bove for water, and Bove produced a bottle of Poland Spring. Courtrooms traditionally bar any other drinks, including Trump’s beloved Diet Coke.

Merchan now turned to Cohen specifically. “Under our law, Michael Cohen is an accomplice,” the judge said, which means “you cannot convict the defendant solely on [his] testimony” unless corroborated.

“Our law,” Merchan said, referring to the New York State criminal code, covers “acting in concert.” I guess he figured using the term “accessorial liability” was too wonky, so he quoted from the relevant definitional portion of the code directly:

“When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when, acting with the state of mind required for the commission of that offense, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.”

My guess is the jury will go with “commands.”

With this criminal liability and “state of mind” illuminated, Merchan said, “The extent or degree of the defendant's participation in the crime does not matter.” He is “as guilty of the crime as if the defendant, personally, had committed every act constituting that crime.”

This was bad news for Trump, not because the judge is biased against him but because in New York (and other states), you don’t get acquitted if you’ve hired and paid a hit man to kill your wife but didn’t pull the trigger yourself.

Outside of court, an old friend of mine — a smart, moderate Republican — started repeating GOP talking points to me about how Merchan was messing with the need to be unanimous. But Merchan’s instructions are straight out of the New York penal code:

“Your verdict on each count you consider, whether guilty or not guilty, must be unanimous. In order to find the defendant guilty, however, you need not be unanimous on whether the defendant committed the crime personally, or by acting in concert with another, or both.”

Because of all the chatter about the actual law Trump broke, I think it’s important to give you the statute in its entirety, as the judge read to the jury more than once: 

“Under our law, a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person makes or causes a false entry in the business records of an enterprise.”

Trump enablers pretend this is just a minor bookkeeping matter. But as Josh Steinglass, the prosecutor, explained on Tuesday, the Manhattan District Attorney’s office brings more than 100 cases a year under this statute because adherence to it is essential to the order and transparency on which all business in New York depends. 

Forest Reinhardt, my college roommate and a professor at Harvard Business School, later told me that our entire system rests on this prosaic idea. Without it, we’d have Russia’s unproductive crony capitalism. 

One of the key words in the statute is “intent.” Merchan instructed the jurors that “intent does not require premeditation or advance planning…Intent may exist only at the moment he acts…Intent can be inferred…”

In assessing intent, Merchan told the jury to consider questions like: “What, if anything, did the person do or say? What result, if any, followed the person's conduct, and was that result the natural, necessary, and probable consequence of that conduct?” And he explained that fraud “can extend beyond economic concerns.”

This is where Trump’s contacts with David Pecker, the former publisher of the National Enquirer, and Hope Hicks, his longtime communications aide, will come in — to buttress Cohen on these questions. 

Merchan then turned to  Section 17-152 of New York State election law, which the prosecution identified as the “other crime” Trump intended to commit. It bars “conspiracy to promote or prevent an election by unlawful means” — a conspiracy the prosecution says began at the now-infamous Trump Tower meeting in August 2015, where ‘catch-and-kill” was first discussed, though those words were not used.

This state statute is obscure but should not be considered rickety. In fact, invoking it lends democratic grandeur to this case. 

“Democracy gives people the right to elect their leaders, but that rests on the premise that the voters have access to accurate information about the candidates,” Steinglass said in his closing argument. “[Trump] sought to deny that access, to manipulate and defraud the voters, to pull the wool over their eyes in a coordinated fashion.”

But here’s where the case gets legally intricate — like a Russian “nesting doll,” as Cyrus Vance, Jr., Alvin Bragg’s predecessor as Manhattan D.A., puts it. That intent to violate the New York election interference law must be connected to “unlawful means.” 

Vance, Bragg, and others from that office have compared it to New York’s law on burglary, where intent to commit “other crimes” once inside the house (e.g., assault with a deadly weapon, vandalism) does not have to be spelled out. This is much tougher to explain in a business records case.

To meet the  “other crimes” and “unlawful means” standards in the business records and election interference statutes, the prosecution offered three possibilities, any one of which would suffice: violation of the Federal Election Campaign Act (FECA), falsification of other business records, and violation of tax laws.

The core of the prosecution’s argument is that Trump caused Cohen to do all three.

On FECA, Merchan instructed the jury that campaign contributions include “anything of value” given to the campaign by any person. He explained that in 2015-16, the legal limit on individual campaign contributions was $2,700. Jurors didn’t have to be mathematicians to figure that was a helluva lot less than the $130,000 given to Stormy Daniels.

The defense had fought hard to get testimony from Bradley Smith, former chair of the Federal Election Commission, who planned to testify that hush money is not a campaign contribution. He would have argued that it was not a campaign contribution when Bunny Mellon, a wealthy John Edwards benefactor, sent money to Edward’s mistress and love child to shut them up. 

Republicans scream that Merchan barred Smith from testifying. That is untrue. He ruled that he could testify to many things but not offer his legal interpretation of this case. Merchan ruled before and during the trial that if he allowed Smith to testify, he would have to allow the prosecution to call its own expert witness. Then, jurors would be confused by three sets of instructions when the judge — and the judge alone — is supposed to instruct them.

Merchan’s much-anticipated instruction on federal election laws was this: “Under federal law, a third party's payment of a candidate's expenses is deemed to be a contribution to the candidate unless the payment would have been made irrespective of the candidacy.”

In other words, Cohen’s reimbursed $130,000 payment to Stormy Daniels was a campaign contribution unless he would have done it anyway — outside of a campaign — to, say, protect Melania. That’s where all the testimony from Hicks and others about Trump’s strong reaction to the Access Hollywood tape comes in. 

When I heard Merchan’s instruction on FECA, I felt the odds move heavily in favor of conviction. The facts of the case had already badly wounded Trump — and now the law did, too.

Because Merchan was a state judge interpreting a federal statute, this could be Trump’s most fruitful avenue of appeal. 

But Republicans don’t understand that even if Bradley Smith testified and Merchan had been a rightwing judge who instructed the jury to do as MAGA, well, instructed, Trump still would have likely been convicted. That’s because there were two “other crimes.” 

Merchan told the jury it could consider the bank documents associated with Cohen’s dummy corporations, the wire transfer of hush money to Keith Davidson, the invoices to one of the dummy corporations, and Cohen’s Trump Organization 1099. All of them could be “unlawful” business records.

Cohen’s misrepresentations on local, state, and federal tax forms could also be construed as unlawful “even if it does not result in underpayment of taxes.”

Finally, Merchan focused on the 34 criminal counts. Thank God he didn’t do so one at a time. 

“The only difference is that each count pertains to a different business record and possibly a different date,” he said. 

After ending his complex instructions, the judge asked for volunteers among the jurors to handle the laptop they would use in the jury room to examine exhibits. Tech-savvy jurors # 4 and #6 volunteered, and lawyers for both sides explained to them how to use it.

After the jury left to deliberate, the judge reported a request to have the laptop disconnected from the Internet.

I saw an energized Trump whispering to Todd Blanche and Emil Bove (he seems to ignore Susan Necheles). My guess is that he wanted to know if the exhibits could be corrupted by forces outside the building, which would be an excellent argument for a mistrial. But a few minutes later, the judge reported that the laptop of exhibits had never been connected to the internet in the first place. I have no idea if this had all been a rumor planted by the defense, though I have my suspicions.

With my superior seat, I got a good look at Trump as he turned to leave. He did a quick, lip-pursed intake of breath, which suggested some nervousness, then put on his game face as he went to the press pool pen and told the world, as usual, that the trial was "rigged."

“Mother Theresa could not beat those charges,” he said, encouraging comparisons and lowering expectations.

After a couple of hours of deliberating, the jury rang the buzzy bell that indicated a verdict or a note to be delivered to the court. This was the latter. The jury wanted to hear four pieces of testimony read back:

-David Pecker being called out of a meeting with investors in New Jersey to take a call from Trump.

-Pecker’s testimony on his decision not to finalize and fund the hush money for Karen McDougal.

-Both Pecker and Cohen’s testimony about the 2015 Trump Tower meeting where the conspiracy to interfere in the election started.

Soon, the jury sent a second note saying it wanted the judge to re-read the instructions. Some reporters groaned, but I understood. The law they were charged with applying wasn’t simple.

The lawyers scuffled on a few points but mostly agreed on the relevant pages of the transcript that play-acting court officials would read the next day.

I figured that since the jury would need time to hear all of that, I could come in later than usual on Thursday morning.

Big mistake.

Thursday, May 30, 2024

For six weeks, I’ve arrived at the courthouse at 7:30 a.m., where I check in as #31, representing the Washington Monthly, on the Golden List of Al Baker, the unflappable and highly competent head of press at the courthouse. Al’s the guy who got me my seat in the first place.

After deliberations began, we were shepherded to a much larger room used for jury pools. There, we could eat and use our cell phones. Things felt a little looser, and some rules were relaxed.

So I figured I'd be fine if I arrived the next day at 8:30 a.m. — an hour before the trial resumed. But when I arrived, all the other reporters were inside, and Al said he had been looking for me. He had apparently given my pass away when I hadn’t shown up. He said he could get me into the overflow room but not the courtroom. 

Shit! I suddenly realized that I could miss the verdict because of my stupidity.

But Al took pity on me. He said he would go upstairs and see what he could do. I waited nervously for 45 minutes outside the courthouse — fending off a woman weeping because she had waited 17 hours and hadn’t gotten in. 

Finally, Al and a senior court police officer who knew my face came out and gave me the precious white paper pass with the date stamp on it. I was in again. 

Not surprisingly, I had a bad seat on a bench at the very back of the courtroom in the morning, but —crucially — did fine in the afternoon, with a good sightline to the jury box.

When court resumed, we knew the jury wanted to be reminded of what David Pecker had told them five weeks ago. Did he corroborate Cohen’s testimony? After all they had learned, they were now in a better position to know. As two female court officials played the roles of Pecker, Cohen, and the lawyers, it was hard to read the tea leaves to determine which side this re-reading of testimony favored. Same for the re-reading of portions of the judge’s instructions. 

I then made my second mistake of the morning: I banged out a mini-column for The New York Times (my first of three that day), wrongly predicting that the jury would compromise by convicting Trump on nine out of 34 counts — the ones where his fingerprints were on the checks. I thought that if the jury bought the prosecution’s theory of the case, it should convict on all 34. But these jury room deals are not uncommon.

While we waited, I finished a second mini-column for the Times about Trump and Abraham Lincoln that I think was one of the best of the 38 pieces I wrote about the trial for that paper (Shoot me: I still call it a newspaper, even though my articles were digital only).

I was fairly sure we wouldn’t have a verdict today, and this was confirmed a little before 4 p.m. when Merchan came into the courtroom and told us he would summon the jury and excuse it until Friday.

This was good news for the defense table, where Trump and his lawyers were smiling and laughing. They figured the longer the deliberations, the better the odds of a hung jury.

We heard nothing for more than half an hour–certainly not the buzzy bell we expected if the jury had a note to send the judge or a verdict. 

Where was Merchan? He had left the bench to tell jurors he was excusing them and hadn’t returned. 

In the meantime, I had a nice whispered chat with Andrew Giuliani, who, as a child, was immortalized in a hilarious Chris Farley skit on SNL before becoming Trump’s golfing partner and a woefully unsuccessful candidate for governor. I like his mother, Donna Hanover, whom I knew from her radio days and had cast in 2014 as a senator in Alpha House, the Amazon political comedy written by Garry Trudeau that I had co-produced a decade ago. 

So Andrew and I had a polite conversation across the gaping divide. I told him I expected a conviction and asked him if he would blame his fellow New Yorkers who were, as we spoke, spending many hours painstakingly examining the evidence. He said yes, these ordinary neighbors were biased, and he took a shot at Matthew Colangelo, the federal prosecutor who came in from the Justice Department to help the D.A.’s office. 

“That’s totally unprecedented!” Giuliani the Younger said, previewing some of the Trump team’s damage-control spin. I reminded him that this had been done countless times in civil rights cases in the South and in complex local prosecutions. This didn’t seem to leave an impression on him.

Around 4:20 p.m., Merchan mounted the bench and announced that he had received a note from the jury. I first thought it was another request for more evidence to be read back. This was a conscientious jury deliberating since midday on Wednesday — at this point, for more than nine hours. But the note said a verdict had been reached, and jurors needed another half-hour before announcing it.

You could hear a collective gasp in the courtroom.

At  5:03 p.m., the jury entered, and the foreperson, Juror #1, a former waiter clad in a blue pullover, stood and confirmed that the jury had reached a verdict.

I had been watching Juror #1 for weeks, and he seemed a little less attentive than many of his colleagues. From his haircut and looks, I would have thought he was MAGA had he been Irish-American. After all, most of the Irish-American cops in this building are for Trump. But he is Irish-Irish, an immigrant who spoke with a brogue during jury selection. This made me worry much less about him. 

He wasn’t talking enough for the brogue to come through because after “Yes,” he said only one word 34 times: 

“Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.” “Guilty.”

This was the most dramatic public moment I have ever witnessed. 

The defense was asked if it wanted to waive its right to poll the jurors, and of course, it said no. When asked, “Is that your verdict?” each of the other 11 jurors–their poker faces intact — calmly answered, “Yes.”

Trump had become a felon.

Merchan thanked the jurors for their service in a “very stressful and difficult task” and told them they were “free to discuss the case, but you are also free not to. The choice is yours.”

Todd Blanche moved for a “judgment of acquittal” because there’s “no way this jury could have reached a verdict without accepting the testimony of Michael Cohen.”

Merchan thought he heard Blanche say that even the judge knew Cohen had perjured himself on the stand. The judge was not amused. Blanche backtracked, and the motion was denied with dispatch.

At the request of Blanche, who has other Trump legal proceedings to deal with in June, Merchan set sentencing for July 11.  

Trump is unlikely to get off with a slap on the wrist. First, he must undergo a “probation interview,” followed by a “probation report.” Instead of remorse, Trump will be defiant in his interview with probation officers, and the report to the judge is unlikely to be favorable. 

No sentence will be served until all appeals are exhausted, but the judge has great power over the felon now and could jail him for contempt at any time. 

The GOP convention in Milwaukee starts three days after sentencing (which could be delayed). My sense is Republicans will walk into a trap if they spend their entire convention trashing this judge instead of talking about inflation. But they might. 

In any event, we may spend July discussing ankle bracelets in the White House.

Merchan asked for the current bail status. In what may have been my favorite line of the day after “Guilty,” Josh Steinglass said, “No bail, Judge.”

In another trial, that might mean the felon had been denied bail. Here, it was a simple recognition of the stark reality that a jury had just convicted a former president of the United States, who would not be held in a holding cell.

Trump’s face had been impassive when the verdict was read.  Now, he stood to begin his walk up the center aisle. He swung his right hand out to shake hands with Eric, but he did so with an exaggerated faux-bro wide-arc shake without looking at his son, much less hugging him. He seemed more hunched than usual, with pain on his face.

In the elevator, a photographer who has been shooting him for years told me: “I have never seen him looking so tired.”

I got off on the quiet second floor to crank out a 500-word Times mini-column with some of the above in it. Then I went outside, where a couple hundred protesters from both sides had gathered earlier to hear the verdict read. A police officer told me they had been evenly divided, but now, most of the pro-Trump activists have melted away.

I fell into a conversation with two cops — one black, one white. The black cop smiled when I described the verdict; the white cop repeated MAGA talking points.

I wish I could tell you what happens next in this country. I can’t. But the verdict did bring some genuine democratic accountability, and we should celebrate it.

This is the last of these lengthy posts. Soon, I’ll return to inflicting myself on you only once or twice a week. For now, I’ll be taking a break.

Thanks for reading me.