Fox Botches Reporting on Week-Old Trump Jury Instructions
I went off on a tear today, but your usual potpourri of stories will be back tomorrow. If you think this kind of contextualized analysis is valuable, please consider becoming a paid subscriber.
It seems to have started with a Tweet. Fox anchor, White House correspondent, and not-lawyer John Roberts was in court yesterday for Judge Juan Merchan’s instructions to the jury in the trial of D4FRFP1 Donald Trump.
Roberts miswrote that:
“Judge Merchan just told the jury that they do not need unanimity to convict. 4 could agree on one crime, 4 on a different one, and the other 4 on another. He said he would treat 4-4-4 as a unanimous verdict.”
That was 10:52am. And wrong.
At 12:02pm, reacting to understandable confusion and an accurate paraphrasing of what he had said, Roberts — who had still not obtained a law degree — walked himself back, under the guise of making it seem like the paraphrasing was wrong. He clarified that jurors didn’t have to be unanimous about which unlawful means Trump sought to use to violate campaign laws against screwing with elections (in this case by concealing his payment to Stormy Daniels). Roberts almost succeeded in clarifying that unanimity is required about Trump’s alleged crime, not about the means by which he sought to commit it:
“It is more nuanced than that [thing I said wrongly]. All 12 need unanimity that Trump committed a crime. But the underlying unlawful means is a smorgasbord they can pick from - and they don't all need to agree on what it was.”
The torch, however, had been lit. And Roberts continued to fan the flame.
At 12:37pm, Roberts shared a legal analyst’s critique of the instructions and called him “astute.” (Calling an analyst “astute” is code for calling their analysis “correct” when “journalists” still want to be able to say, “Look at me, Mommy, I’m being objectival!”)
The right-wing Daily Caller shared video of Fox’s analyst, and wrongly said, “Judge Merchan tells the jury in the Trump trial that they do not need unanimity to convict.”
At 12:52pm, Roberts put his thumb on the torch-lighting scale again2, sharing a rant by Sen. Marco Rubio (R-FL), while noting — objectivity-code! — that Rubio is an attorney.
Rubio — who has a law degree from the University of Miami School of Law — had flipped out at 12:13pm about Roberts’s original report:
“...among the crimes the [jury] can pick from are ones Trump WASN’T EVEN CHARGED WITH!!!
“This is exactly the kind of sham trial used against political opponents of the regime in the old Soviet Union”
(Turns out, Rubio is not an attorney. An attorney is a practicing lawyer. Rubio is not. So Roberts was wrong about Rubio being wrong about the earlier thing Roberts was wrong about.)
Roberts also shared Greta van Susteren citing federal law that says juries do have to be unanimous about every element of the crime. (Fun fact: This trial is not about federal law. State court, state law, state charges.)
A little earlier, at 12:15pm, Sen. Josh Hawley (R-MO) — self-described “Christian, constitutional lawyer” (but not currently an attorney!) — responded to author, legal scholar, and Fox favorite Jonathan Turley, who had said that the jury “could split 4-4-4” and still convict Trump. Hawley — Yale Law Class of ‘06 go Bulldogs! — Tweeted that, “This ‘trial’ is a mockery of the justice system from beginning to end.”
Trump chimed bellowed in at 1:34pm:
“IT IS RIDICULOUS, UNCONSTITUTIONAL, AND UNAMERICAN that the highly Conflicted, Radical Left Judge is not requiring a unanimous decision on the fake charges against me brought by Soros backed D.A. Alvin Bragg. A THIRD WORLD ELECTION INTERFERENCE HOAX!”
At 2:35pm, Gov. Kristi Noem (R-SD) — who didn’t go to law school but is currently handling a heavy workload completing her course of study to be licensed as Trump’s vice presidential candidate — posted that Merchan’s instructions violated federal (a.k.a. not state) law. She added — apparently using ChatGPT to steal Trump’s voice, “Totally RIGGED trial!”
Now, I also didn’t go to law school, and I didn’t even stay at a Holiday Inn Express last night, but let’s unpack this.
First of all, consider the fact that in the most-watched trial of the last I-don’t-care years, the right wing has become so indifferent to real-world fact things, that apparently none of them bothered to read or even misread Merchan’s instructions when they actually came out…last week.
Politico wrote them up at the time. And here they are online. They were posted online when Merchan finalized the language — after deliberating with both legal teams about what they should say.
Not only did we have these instructions for a week, the normal-ness of them — specifically in relation to the lack of unanimity — was confirmed by no less than Trump’s own lawyers.
Trump’s attorneys argued that they wanted Merchan to require unanimity on the means of Trump’s (alleged) criming. But when Merchan pressed back that this would be out of the norm, they agreed that this was true!
Here’s the exchange, starting in media res with Emil Bove, a Trump lawyer who’s also an attorney, asking Merchan to direct the jury to specify in any guilty verdict — unanimously — what the unlawful means were by which Trump sought to violate the law:
“Certainly”!
And if you think that was satisfying, check out what happened afterward, as Bove continued on, and Matthew Colangelo — a lawyer, attorney, and prosecutor — responded to Bove’s plea for special treatment.
We pick up the exchange with Bove alluding to his past argument that Merchan should favor Trump because “this is an extremely important case” — followed by Colangelo and Merchan responding exactly the way you want them to:
In other words, according to Trump’s own attorneys, what the right wing is now calling rigging the trial was actually the judge not giving Trump special treatment.
Bove said the case is extremely important. Which is true of every case for the people on trial.
The fact that this trial is important to many other people, as Colangelo and Merchan admirably acknowledge, is precisely the reason not to treat it … or Trump … or the law … any differently.
So, given all of that, think how crazy this is. Not only is the right wing characterizing denial of special treatment as the case being rigged, they’re freaking out — wrongly — over something they knew about a week ago in a situation they’ve been monitoring like hawks, both metaphorical and political. This is how bad they are at doing the things.
And, in fact, there’s two instructions for issues that jurors don’t need to be unanimous about! Here’s the one the right forgot to freak out about:
“[Y]ou need not be unanimous on whether the defendant committed the crime personally, or by acting in concert with another, or both.”
RIGGED!
And then there’s the one Roberts pooched. Here’s the actual wording:
“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”
Trump fans misheard this yesterday as meaning jurors don’t have to be unanimous about the crime he committed to convict him. Which is false.
To convict Trump, all the jurors must agree that he violated the law against trying to fuck with the election through illegal means. They don’t have to agree on how he did that.
The problem with blaming Merchan for this is that the lack of unanimity didn’t originate with the jury instructions. The law says this. And the law was written even longer than a week ago! And Trump’s own lawyers agreed that this is how juries are typically instructed.
And that lack of unanimity actually makes a lot of sense. We see it in lots of other laws. You can be convicted of grand theft auto even if the jury splits on whether you used a wire hanger or an electric gizmo to pop the lock.
You can be convicted of breaking and entering even if the jury splits on whether you were there to steal Action Comics #1, the first appearance of Superman, or Detective Comics #27, the first appearance of The Batman (assuming you don’t count his tiny headshot in Action Comics #2’s ad for Detective Comics #27).
(And if you think the debate over jury instructions was rancorous, do not ask a comics fan whether this counts as The Batman’s first appearance!)
Anyway, I think the most effective pushback on all of this is not to holler that Noem and Rubio et al are bad people (I am anti-litigating essential goodness/badness of human beings). There are plenty of helpful facts at hand here to counter the right’s narrative.
In fact, the jury instructions have lots of things favorable to Trump (I don’t know how many of those instructions Merchan had discretion over, because I still haven’t gone to law school) and it’s worth pointing out those Trump-favoring instructions to MAGA skeptics of the justice system.
For instance, jurors can’t rely solely on Trump lawyer Michael Cohen’s testimony to convict and they can treat Cohen as wholly untrustworthy if they find any one piece of his testimony untrustworthy.
And it’s worth agreeing with MAGA that the system is rigged against Trump — because it’s rigged against all defendants. Then you can point out that Trump had four years to fix this Soviet-style justice system while it was being unfair to hundreds of thousands of other defendants. (And you can remind folks that Trump et al have screamed for years that the criminal-justice system is too lax on defendants. As ye sow…)
Of course, the system is extremely rigged against the poor — which might soon include Trump! It’s rigged because counsel is expensive, etc. But it’s also rigged for the rich in a way that might benefit Trump in this trial, even though he’s getting less rich by the minute.
Trump is accused of complicated crimes. Committing them required business knowledge and legal knowledge. Rich people complicate the law to enable and muddy their crimes. That complexity is why it’s so hard to convict financial criminals, and why closing arguments took so long.
But despite this complexity, we ask jurors who have zero knowledge of these complex fields to render judgments about it. It’s a lot easier for amateurs to decide a poor kid on video snatching a purse is guilty than it is to render a verdict about falsification of business records in the commission of a crime to conceal a violation of campaign-finance law.
The complexification of law — and crime — further rigs the system toward the rich and against the poor. If Trump gets off (ew) it’ll be because of that complexity — and the jury’s lack of expertise.
TCB
MISS OUR USUAL ROUNDUP? It’ll be back tomorrow. Unless there’s a verdict, in which case I’ll probably focus on that. For understandable reasons, I’d argue!
NICOLE SANDLER Don’t forget to catch me every Monday with the weekly “The Fucking News” segment on The Nicole Sandler Show, which you can watch/listen to live every Monday at 5pm, or on demand, here.
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Go get ‘em, kids…!
D4FRFP = Disgraced, quadicted, fraudster, rapist, former President.
Like a fox in the henhouse gilding the lily, this newsletter reserves the right to mix metaphors.
Great rant! Lol.
Ipso facto, funny is as funny does, Q.E.D.