How Judge Merchan’s Jury Instruction Undermines Trump’s Defense

G rasping at straws, some pro-Trump commentators have noted that, in his instructions to the jury, Judge Juan Merchan included a nod to what has been called the “irrespective” test in federal campaign law — i.e., under the Federal Election Campaign Act (FECA). But actually, Judge Merchan’s instruction is one of the many insidious ways he is putting his thumb on the scale to get Trump convicted.

Brief background: Trump is charged with 34 counts of felony business-records falsification, which requires prosecutors to prove he cooked his books in order to conceal “another crime.” In the main, Manhattan’s elected progressive Democratic district attorney, Alvin Bragg, has alleged that this other crime comprises violations of FECA’s campaign-contribution limits and campaign-expenditure-reporting requirements. Let’s not belabor the record with the inconvenience that Bragg, a state prosecutor, has no jurisdiction to enforce federal campaign law.

Now, as the candidate, Trump had no contribution limits. Nevertheless, Bragg theorizes that skirting FECA was the objective of a conspiracy among Trump, Michael Cohen, and David Pecker; hence, the state contends, Trump caused Cohen and Pecker to violate the contribution limits that applied to them as donors. That is, Trump is alleged to have (a) caused Cohen to exceed his $2,700 FECA ceiling by paying $130,000 for a nondisclosure agreement (NDA) with Stormy Daniels (the porn star who claimed to have had a 2006 tryst with Trump) and (b) caused Pecker’s American Media Inc. to violate FECA’s proscription against corporate contributions by paying $150,000 for an NDA with Karen McDougal (the Playboy model who claimed a 2006 extramarital affair with Trump) and $30,000 for an NDA with Dino Sajudin (the doorman who falsely alleged that Trump fathered a child out of wedlock).

Now, let’s get to how Merchan’s instruction is undermining Trump’s defense but in a way designed to let prosecutors claim on appeal that he gave the defense its due.

Because FECA is a complex, constitutionally fraught corpus of law, Congress mandates that prosecutors prove the defendant acted willfully. That is the most demanding scienter (or intent) requirement in the criminal law, calling for proof that the accused was aware that he had a legal duty and intentionally acted to flout it. As I’ve pointed out, there is no evidence that Trump was even thinking about FECA, much less willfully intending to violate it, in 2016 and 2017, the years when, respectively, the NDAs were negotiated and Cohen was reimbursed. In fact, FECA concerns do not enter the proof in the case until 2018, when the existence of the NDAs was leaked to the media and the Federal Election Commission commenced an investigation (which resulted in no action against Trump). Yet, Merchan has enabled Bragg to fill this gaping hole in his case with improper evidence, namely, the federal guilty pleas of Michael Cohen to FECA crimes, and the fact that Pecker entered a non-prosecution agreement with the Justice Department — after which AMI paid a fine to settle the FEC probe.

It is a rudimentary legal principle that Cohen’s guilty pleas, Pecker’s non-pros deal, and AMI’s fine are not admissible evidence against Trump. Even Merchan concedes that. He disingenuously admitted the evidence on the pretext of helping the jury weigh the credibility of Cohen and Pecker, and then allowed prosecutors to use the evidence offensively against Trump — to such a gross extent that the jury no doubt thinks the FECA violation is an established fact in the case rather than something the state needs to prove.

In any event, the operation of the minds of Cohen and Pecker regarding FECA in 2018 is patently not evidence of Trump’s mental state in 2016–17, when the 34 alleged bookkeeping crimes occurred. Bragg still has to prove beyond a reasonable doubt that, to the extent Trump was involved in the NDAs and Cohen’s reimbursement, he acted willfully — he fully grasped that he had legal obligations under FECA and intentionally flouted those obligations. There is absolutely no evidence in the record that Trump even considered FECA, let alone willfully violated it.

So how has Merchan charged the jury? He has blandly instructed them that it is unlawful for a person to “willfully” make or cause the making of contributions that exceed FECA limits. (Jury Instructions at pp. 31, 44.) But he hasn’t instructed them on what “willfully” means.

This is sabotage. Evidently, Bragg’s prosecutors convinced Merchan that it would be too confusing for the jury to instruct them on multiple criminal states of mind — i.e., that an instruction on willfulness would be too mind-bending after the jury had been instructed of the “intent to defraud” element of the business-records offense. (Jury Instructions, p. 28.) But that’s just the point: Trump is entitled to have the jury told that it’s harder to prove willfulness — which, among other things, would focus the jury on the dearth of intent proof against Trump on FECA during the relevant 2016–17 timeframe.

The lack of a willfulness charge is bad. Turns out, though, it’s a coup for Trump compared to Merchan’s instruction on what a campaign expenditure is.

Whether something technically qualifies as such an expenditure depends on whether what is purchased is innately part of a political campaign. This gives rise to the aforementioned “irrespective” test, under which an expenditure is not subject to FECA if the obligation that gave rise to it would have existed irrespective of whether there was a campaign.

To repeat examples I’ve used before, polling and get-out-the vote efforts are campaign expenditures under FECA because, without the campaign, there would be no reason to expend funds on them. To the contrary, NDAs are not campaign expenditures because they do not arise out of the campaign and there could be many reasons for paying them that have nothing to do with the campaign. Stormy Daniels used the leverage of the campaign to pressure Trump for an NDA because he happened to be a candidate for office, but she could have used any relationship or business opportunity that Trump, a billionaire celebrity businessman, could potentially have lost had she gone public — his wife and family, a big television gig, a lucrative real-estate project, etc.

But here’s the thing: The defense needed — I believe, was entitled to call — a witness to explain that “irrespective” concept to the jury. Trump’s lawyers tried to call former FEC commissioner Bradley Smith to do just that, but Merchan refused to allow it. As a result, not only were jurors deprived of an expert witness’s explanation of a key concept in the case; they received, in effect, incorrect instructions from Cohen and Pecker. Those prosecution witnesses did not testify about what a campaign expenditure is as an objective legal category, as Smith would have. Instead, they explained what they claim subjectively to have been thinking when they negotiated and paid for the NDAs.

For example, prosecutors made a point of asking Cohen whether, but for the 2016 election, he would have paid Stormy Daniels for an NDA. Naturally, he said no. Bearing that in mind, here is Judge Merchan’s relevant instruction to the jury:

If the payment would have been made even in the absence of the candidacy, the payment should not be treated as a contribution.

This instruction is wrong. It is not a matter of whether the person who paid the expenditure would have paid in the absence of the candidacy. The question is whether the expenditure could have been paid for reasons other than the candidacy. But the jurors don’t know that. Having heard Merchan’s instruction, they will assume it means that the NDAs must be campaign expenditures because, if it weren’t for Trump’s candidacy in 2016, Cohen would not have paid Daniels and Pecker’s AMI would not have paid McDougal and Sajudin.

This prosecution is outrageous not just because Bragg purports to enforce federal law despite his lack of authority to do so. It is outrageous because Bragg and Merchan are making up their own version of federal campaign law — a version that steers the jury toward convicting Trump.