With Donald Trump’s hush money trial winding up, several reports are out speculating as to what’s next.
POLITICO Playbook (“Trump trial ends, Biden alarm accelerates“):
Closing arguments begin this morning in Trump’s Manhattan hush money case and could continue into tomorrow. Following the summation of the case, Justice JUAN MERCHAN will then deliver the heavily-litigated instructions to the jury. We could have a decision by the end of the week.
Here’s what our experts see as the big factors shaping the final stretch:
The gag order … James Romoser reminds us that even though the trial is almost over, Trump could still be jailed for violating Merchan’s gag order: “In recent days, Trump appears to have twice violated the gag by publicly assailing prosecutor MATTHEW COLANGELO. And on Monday evening, he again arguably violated it by posting on Truth Social about a witness in the case. Early in the trial, prosecutors had diligently notified Merchan about every potential violation. Now, it seems they just want to get the case to a verdict. But as Ben Feuerherd reported over the weekend, if Trump is convicted, his continued defiance of the gag could be a reason for the judge to enhance his sentence.”
Framing the closing arguments … Ankush Khardori tells us he’s watching two things. First, how will prosecutors set up MICHAEL COHEN’s importance to their case and the substance of his testimony? They’ll possibly argue to jurors that they don’t need to believe Cohen, just the documents and other circumstantial evidence. “The problem is,” Ankush notes, “that on some level, that argument is self-refuting, because no sane prosecutor would make Cohen a key witness in their case unless they thought they had to. It’ll be interesting to see what they do.”
Second, he’ll be watching if Trump’s lawyers repeat some of their earlier mistakes: Rather than laser-focus on Cohen’s credibility, they’ve “diluted their own defense in very Trumpian fashion — by implausibly contesting pretty much everything, including whether Trump had an extramarital sexual encounter with STORMY DANIELS, and by making relatively peripheral witnesses appear important through disproportionately long cross-examinations. It would be unwise to do that all over again in closing argument, but Trump himself may give them no choice.”
The all-important jury instructions … Josh Gerstein shares this learned take on what to watch for as Merchan prepares the jury for deliberations: “The jury instructions from Merchan seem potentially pivotal both to the verdicts the jury will reach and to the outcome of any appeal if Trump is convicted. The defense asked the judge to essentially import the mens rea required for a criminal campaign finance violation in federal court, while the prosecution is resisting that and favors a more open-ended instruction under which Trump could be convicted for a variety of different reasons that the jury won’t have to spell out.”
How it could end … Erica Orden explains all of the possible outcomes. Some are straightforward enough: conviction on all counts, acquittal on all counts and mixed bill. But she notes there’s some texture that could inform how the jury acts. For instance, while “prosecutors have offered three possible underlying crimes — violations of state or federal election law and a tax crime … the jurors do not all have to agree on what that separate crime was” — which could make securing convictions easier.
And then there’s the two wild-card outcomes: the much-discussed hung jury, which could in fact be a partially hung jury, reaching verdicts on some counts but not others, and this unlikely but possible scenario: “Merchan could take the decision out of the jury’s hands by issuing a ‘directed verdict’ for acquittal — in essence, a determination by the judge that no reasonable jury could find that the prosecution has proved its case.”
The iced-out jury … Given the fact that the jury has been sitting around waiting (and probably mulling the evidence individually) for a week now, Kyle Cheney tells us he wouldn’t be surprised to see a quick verdict. But he adds a caveat.
“One thing about high-profile trials: Juries almost always do something unexpected or parse evidence differently than conventional wisdom dictates. So don’t be surprised either if the outcome is mixed or the jury bought certain arguments from prosecutors but not others. We may only be able to guess at their analysis, unless any of them go public afterward.”
CBS News (“What happens if Trump is convicted in New York? No one can really say“):
When the judge overseeing Donald Trump’s criminal trial found on May 6 that Trump had violated a gag order for a 10th time, he told him that “the last thing I want to do is to put you in jail.”
“You are the former president of the United States and possibly the next president, as well,” said Justice Juan Merchan, reflecting on the momentous weight of such a decision.
Whether to jail the Republican Party’s presumptive nominee for president is a choice that Merchan may soon face again, if jurors in Trump’s “hush money” case vote to convict him. Closing arguments and jury deliberations start this week.
What exactly would happen if the jury finds Trump guilty is difficult to predict. Trump is being tried in New York state court, where judges have broad authority to determine when sentences are handed down after convictions and what exactly they will be, according to former Manhattan prosecutor Duncan Levin. That differs from federal court, where there’s typically a waiting period between a conviction and sentencing.
“It’s much more informally done in state court. I’ve had cases where the jury comes back and says, ‘guilty,’ and the judge thanks the jury, and excuses them, and says, ‘Let’s sentence the defendant right now,” said Levin. “Obviously, everything’s a little different about this case than the typical case.”
Each of the 34 felony falsification of business records charges that Trump is facing carries a sentence of up to four years in prison and a $5,000 fine. He has pleaded not guilty.
Norm Eisen, an author and attorney, recently analyzed dozens of cases brought by the Manhattan District Attorney’s Office in which falsifying business records was the most serious charge at arraignment. He found that roughly one in 10 of those cases resulted in a sentence of incarceration. But he also cautioned that those prosecutions often involved other charges and noted the dynamics at play in Trump’s case make his sentence particularly hard to forecast.
If Trump is found guilty, Merchan would have fairly wide leeway in determining a punishment, including sentencing Trump to probation or house arrest.
Levin said the option of confining Trump to his home, followed by a period on probation, might be appealing to Merchan, who has repeatedly indicated he’s concerned about limiting a presidential candidate’s ability to speak freely. Such an option would allow Trump to do interviews and access social media from his home.
I don’t have a lot to add here. I’ve paid attention to the trial but haven’t followed it in minute detail. It seems pretty clear to me that Trump directed his minions to pay hush money to Stormy Daniels (which probably isn’t a crime) in order to keep her from speaking out during the 2016 campaign (which complicates matters considerably) and then had other minions hide the payments in his business accounting (which is definitely a crime under New York law). Whether the evidence is enough to convince all twelve members of a jury—or whether at least one juror is a rabid Trumper who will nullify the law—is beyond my ken.
Eisen’s analysis is interesting. If most people convicted of the crimes Trump is charged with don’t get jail time, it’s reasonable to think Trump won’t.
At the same time, while Merchan has bent over backward—too much, in my estimation—to avoid stifling Candidate Trump’s speech, one would think the standard would shift for Convicted Felon Trump. Further, Defendant Trump’s repeated violations of the gag order should certainly come into play at sentencing, should he be convicted. At that point, his status as the presumptive Republican nominee for President should be subsumed under his status as a convicted felon.
That Trump is continually roiling his supporters should only add to that. See, for example, his latest outburst on Truth Social at 6:20 yesterday evening:
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! DJT
While I actually think he’s right in this instance, this is how trials have worked since time immemorium. The state has the burden of proof in a criminal trial and thus opens and closes the conversation with the jury. Surely, his attorneys have explained this to him.
