SCOTUS Reminder on Due-Process Mandate of Unanimous Juries Requires Trump’s Guilty Verdicts to Be Vacated

The constitutional flaws in Bragg's case against Trump were clear even before the Supreme Court’s Erlinger decision.

Author’s note: This is the second of two columns contending, based on recent decisions by the United States Supreme Court, that New York State judge Juan Merchan should set aside the guilty verdicts against former president Donald Trump, which were returned by the jury in the criminal trial that ended in early June. The trial resulted from charges brought by Manhattan district attorney Alvin Bragg. The first column is here.

T his is the second of two columns on how recent Supreme Court decisions call for Judge Juan Merchan to vacate the guilty verdicts against former president Donald Trump, which a New York state jury returned in early June, based — however loosely — on an indictment Manhattan’s elected progressive Democratic district attorney, Alvin Bragg, obtained from a grand jury last year.

While the big immunity ruling in Trump v. United States (discussed in the first column) got most of the attention at the end of the Court’s term, the justices, a bit earlier, also decided Erlinger v. United States. Restating a venerable principle, the Erlinger Court held that any fact that has the effect of increasing the range of a defendant’s punishment must be found by a unanimous jury beyond a reasonable doubt. (Our Dan McLaughlin provided a quick analysis of the Erlinger decision.)

In Trump’s trial, to the contrary, Judge Merchan allowed the jury to find Trump guilty of felony offenses absent unanimity about the fact that was necessary to convert misdemeanor falsification of business records into a felony — namely, the fraudulent concealment of a second crime.

To review the charges, which we covered in the first column, Bragg alleged that Trump falsified his business records to conceal a conspiracy to influence an election by criminal activity. Bragg presented three separate theories of what the supposed criminal activity was — (1) the FECA scheme (described in column one), (2) the falsification of Michael Cohen’s business records, and (3) the violation of tax laws (notwithstanding the absence of any non-payment of taxes).

Remarkably, Merchan instructed the jurors that, to find Trump guilty, they did not need to be unanimous regarding which of these criminal activities he conspired to commit. That is, the jury was told it could find Trump guilty even if some jurors believed only the first theory was proved, some only the second, some the third, and — for all we know — some found Trump was conspiring to commit some other, still-undescribed crimes. Merchan compounded this dereliction by declining to have the jury record its findings about the supposedly concealed criminal activity on a special verdict form so reviewing courts would understand it.

Trump’s convictions violate the principle reaffirmed by Erlinger in two ways.

1. The Fact Necessary to Enhance a Misdemeanor into a Felony

The existence of a second crime, allegedly concealed by the business-records-falsification crime, is a fact that increases the range of Trump’s potential punishment. Falsification of business records is a misdemeanor, punishable by less than a year’s imprisonment; it becomes a felony, punishable by up to four years’ imprisonment, only if the prosecutor can establish a second crime that the business records were fraudulently falsified to conceal.

Here, the significance of the second crime is not just increased incarceration. The second felony crime was essential to the prosecution’s viability. Under New York law, misdemeanor falsification of business records has a two-year statute of limitations (SOL). The last crimes alleged in the indictment occurred in December 2017. Hence, if the two-year SOL had applied, Bragg’s case would have been time-barred (i.e., non-indictable) in December 2019 — four years before Bragg indicted Trump. Bragg’s case could survive staleness claims only if the falsification of business records was charged as a felony — namely, falsification committed with fraudulent intent to conceal a second crime. That offense has a five-year SOL, which became six years under New York’s SOL adjustments for Covid. To be viable, Bragg’s April 2023 indictment needed to charge felonies rather than misdemeanors.

In this case, then, the existence of the second crime — the thing that turns the misdemeanor into a felony — is the fact without which there could not have been any prosecution at all. Therefore, the jury had to find that fact unanimously, beyond a reasonable doubt.

(Aside: Bragg also suggested that the SOL was tolled — i.e., extended — by Trump’s purported absence from New York. While serving as president — and living in the White House residence in Washington, D.C. — Trump formally transferred his residence from New York City to Palm Beach, Fla. I am skeptical that Bragg could have saved his indictment from staleness claims by relying solely on the SOL tolling provision that applies when a defendant is out of state. It is directed at fugitive defendants who abscond from the jurisdiction to evade prosecution. Trump was not a fugitive, his White House residence was — to say the least — open and notorious, and he never abandoned his heavy corporate footprint and residential apartment in midtown Manhattan. If Bragg had staked his indictment solely on a claim that his investigation was somehow impeded by Trump’s formal transfer of state residence to Florida, coupled with his 2017–2021 White House bivouac, even Merchan would have rolled his eyes. According to the indictment, Trump’s last alleged felony crime occurred in December 2017; we must assume, then, that the timeliness of the April 2023 indictment hinged on the five-year felony statute of limitations, plus the one-year Covid extension. By contrast, if — as I believe — the alleged misconduct was, at most, misdemeanor-level, the SOL would have lapsed in 2019, rendering the 2023 indictment time-barred. Again, to have a prosecutable case in 2023, Bragg had to charge felonies; to do so, the fact he needed to establish was that Trump falsified his records to conceal a second crime.)

2. The Fact Necessary to Establish the New York Election-Law Conspiracy That Potentially Increased the Sentence to Four Years Per Count

As I’ve previously explained, the conspiracy Bragg claims Trump was trying to conceal could not have existed unless the alleged conspirators agreed on the crime they were trying to commit. For a criminal conspiracy to be proven, (1) the prosecutor must establish that the minds of two or more people met on a particular criminal objective (a statutory crime), and (2) the jury must unanimously agree that that objective has been proved beyond a reasonable doubt. It is not necessary to prove that the criminal objective was in fact achieved, or even that its achievement was possible under the circumstances; it must be proved, however, that the alleged conspirators agreed to try to achieve the objective.

These are black-letter criminal-law principles. Yet, Judge Merchan instructed the jurors that they could find Trump guilty even if they were not unanimous regarding the criminal objective of the agreement the business records were allegedly falsified to conceal — i.e., the fact necessary to establish the conspiracy, the existence of which was necessary both to ensure that the prosecution was valid under the SOL and to increase the potential sentence to a maximum of four years per count.

Discussion

The election-law-conspiracy statute Bragg cites (§17-152), states the following, in pertinent part:

Any two or more persons who conspire to promote . . . the election of any person to a public office by unlawful means . . . shall be guilty of a misdemeanor.

A criminal conspiracy is simply an agreement to commit a crime. Yet, Bragg and Merchan misconstrue this statute to mean that the proscribed conspiracy is the agreement “to promote the election of any person.” That is, they’d have us see the promotion of a candidate’s election as the objective — the end result the conspirators were seeking to achieve — even though that objective is not a crime.

What about the statute’s reference to “unlawful means”? Merchan and Bragg interpret that merely to state, literally, the means by which the conspirators seek their objective. The criminal law distinguishes a conspiracy’s end from the means by which conspirators seek to achieve it. It is the end — the objective — on which jurors must unanimously agree; they need not be unanimous as to means (the latter are often not even alleged in a conspiracy indictment). That was Merchan’s rationalization for instructing the jurors that they needn’t be unanimous regarding the “unlawful means.”

Alas, while literalism is usually desirable in interpreting statutory text, here it invites error. To repeat, “to promote the election of any person” cannot be the objective of a criminal conspiracy because it’s not a crime. The reason the jury must be unanimous about the objective of a conspiracy is that the objective is the intended crime. In §17-152, however, there is no intended crime unless what the statute confusingly calls “unlawful means” are factored in. Ergo, the so-called unlawful means are not really means; they are ends. Simply stated, what the statute labels “unlawful means” are the most essential part of the objective — the activities that make the agreement illegal, that make it a criminal conspiracy.

To convict, a jury must unanimously find, beyond a reasonable doubt, the crime that is the objective of the conspiracy. With regard to the state’s allegation that Trump falsified records to conceal a criminal conspiracy, it would be insufficient for prosecutors to establish that Trump, Cohen, and Pecker agreed to promote Trump’s election. Promoting a candidate’s election is legal. It is what political campaigns do. The First Amendment would not abide an attempt by a state legislature to criminalize it (however much such blue states as New York would like to make it a crime to support the election of Donald Trump).

The agreement can only be a criminal conspiracy if it entails an effort to commit a crime. The agreement to commit a crime is what makes a conspiracy, and the concealment of such a conspiracy is what makes falsification of business records a felony, rather than a misdemeanor. Consequently, in Erlinger terms, the objective crime is the fact that exposes the defendant to an enhanced penalty. For a conviction to be valid, then, a jury would have to find, unanimously and beyond a reasonable doubt, at least one of the three criminal activities (or “unlawful means”) proposed by Bragg — the FECA scheme, the falsification of Cohen’s business records, or the tax crimes. To be clear, the jurors needed only to have found one, not all three; but they had to find at least one — the same one, unanimously.

That’s what criminal due process demands, as Erlinger reminds us. In this case, it was also what common sense required. That’s what ought to alarm reviewing courts. In a prosecution of this magnitude — American history’s first ever criminal trial of a former American president — it was utterly irresponsible for a prosecutor to suggest, and even worse for the judge to rule, that the jury did not need to be in unanimous agreement on the most consequential finding it needed to make in the case. Implicitly, that means the due-process standard of proof beyond a reasonable doubt was not honored. So basic and exalted in the criminal law is the principle that, on essential facts, juries must make unanimous findings beyond a reasonable doubt, that an appellate court, viewing Merchan’s trial record, would be compelled to ask: What other corners did the trial judge cut to help the prosecutor win guilty verdicts?

In this case, the appellate court would find a hectagon’s worth.

The jury did not unanimously find the fact necessary to make Trump guilty of conspiracy — namely, the objective crime. Ergo, the jury did not unanimously find the fact that enhanced Trump’s potential sentence from a misdemeanor to a felony — namely, that he falsified his business records to conceal the conspiracy he’d supposedly committed. Those constitutional flaws were clear even before the Supreme Court’s Erlinger decision. After it, there can be no doubt that the convictions cannot stand. Judge Merchan is duty bound to vacate them.