Name: Attorneys Argue Over Instructions Jury Will Receive Before Issuing Trump Verdict
Uploaded: 2024-05-21T22:52:18.000Z
Description: Former President Donald Trump's "hush money" trial continues in New York on May 21.

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Former President Donald Trump's "hush money" trial continues in New York on May 21.

<em>Follow here for the live updates:</em>
<h2>Trump Claims Judge ‘Hates’ Him</h2>
“Such a disgrace,” President Trump said after leaving the courtroom. He claimed the case was brought on behalf of his political opponents, whom he referred to as “vultures that circle the Oval Office.”

He blasted the judge for the decisions issued in the hearing, and said the judge “hates Trump.”

President Trump read from several commentaries covering his case, as he has done in media appearances recently.

“The Democrats thought they were going to take me out with their lawfare, and it’s so bad that at least I have a voice so I can talk to you, the press,” he said.
<h2>Defense Argues for Spoliation Instruction</h2>
Mr. Bove argued for an instruction that data on phones in evidence could have been altered. Prosecutors argued there was no basis for such an instruction.

“Daus testified he was unable to verify what was uploaded to the phone. The inference is in 2016, he did a reset, and he loaded something else we don’t know about onto the phone,” Mr. Bove said.

Justice Merchan said he would not give such an instruction but the defense could argue it.

“You did a very effective job in cross-examining that witness, and you’re free to make that argument, but I’m not going to give an instruction on spoliation from the bench.”

Mr. Steinglass argued that the term used in the accessorial liability charge should be “intentionally” and not “willfully.”
<h2>Prosecutors Argue Trump Can’t Argue Intent Without Testimony</h2>
The defendant decided not to testify. Having done so, he can’t introduce any argument to the jury regarding his intent,” Mr. Colangelo said.

Mr. Bove continued to press the issue with Mr. Pecker’s testimony, arguing that Mr. Pecker testified he told Mr. Cohen “this is bulletproof,” and President Trump would have inferred that Mr. Cohen, his personal attorney, had properly vetted the scheme.

The defense had previously filed with the court that they were not pursuing an advice-of-counsel defense, meaning they were not arguing that President Trump relied on the legal advice given by Mr. Cohen when the charged actions happened. They had then also made an argument pushing to use an “involvement of counsel” defense that the judge shut down.

Justice Merchan said Mr. Bove was being “disingenuous” in trying to push this argument again.

“The jury will not hear that instruction, and you are not permitted to enter it,” Justice Merchan said. “This is an argument that you’ve been advancing for many, many months. This is an argument you’ve been trying to get through to the jury for many, many months. It’s denied. It’s not going to happen.”
<h2>Judge Maintains Earlier Decision Regarding AMI</h2>
Attorneys argued over how David Pecker’s non-prosecution agreement and Mr. Cohen’s guilty plea would be taken by jurors, and Justice Merchan maintained his earlier decision.

“I don’t think we need to go back and forth on this,” he said. The judge had instructed jurors not to take either of these agreements as evidence of the defendant’s guilt.
<h2>Defense Requests Instruction on Legality of NDA</h2>
The defense argued that the case has not made it straightforward that non-disclosure agreements are legal and it should be included in the jury instructions.

“It should be clear to the jury that hush money alone is not illegal,” Mr. Bove added.

Justice Merchan said he expects the defense will say this in their summation but to “argue it from the bench is taking it too far, it’s not necessary.”

Mr. Bove argued that several facts were raised in the case not for their truth, such as reactions to the Access Hollywood tape, such as Republicans who withdrew their endorsement, and evidence admitted during Hope Hicks’s testimony.

He argued that was a “tipping point” where testimony crossed the line from being probative to prejudicial to the jury.

Justice Merchan said he was willing to read through those portions of the testimony transcript.

Mr. Colangelo said the language in the defense’s jury instructions was “outrageous.”
<h2>Attorneys Argue Over ‘Bias’ Instruction Proposal</h2>
After a short break, Mr. Bove said the defense proposed edits to the instructions to remove bias specific to President Trump. Prosecutors argued this was unnecessary at this stage, after jurors received instructions during questioning at the jury selection stage.

“It isn’t necessary to remind the jury they shouldn’t be biased against President Trump,” Mr. Steinglass said. “We would propose more neutral language.

The judge pointed out the instruction proposed by the defense is not normally given.

“There are several times in the court’s instruction that I refer to bias, fairness, implicit bias,” he said. However, the judge allowed the additional line.

“I will include it even though it’s not something I normally do,” he said. “I will include the People’s version in their submission.”
<h2>Defense Says Case Shouldn’t Go to Jury</h2>
“The problem with this theory, Judge, and the reason it shouldn’t go to the jury is that Michael Cohen testified and he didn’t know anything about it. He was asked, why did Allen Weisselberg gross that number up to $420,000. He answered, ‘I don’t know. I just want to get my money back,'” Mr. Bove said.

“The government is talking about tax filing by Mr. Cohen. The Trump Organization was transparent. That doesn’t amount to some kind of agreement to make false filings for Mr. Cohen, and Mr. Cohen didn’t know anything about it,” Mr. Bove said.

Mr. Colangelo argued the trial record showed Mr. Cohen was getting money as reimbursement that was labeled otherwise.

“We don’t think these inferences are supported by the trial record,” Mr. Bove argued. “A conspiracy doesn’t automatically retain past accomplishment of its objectives. On the government’s theory, when President Trump won, this 175-15 conspiracy was accomplished.”

Mr. Colangelo argued the court had already previously rejected that legal argument.

“The trial record really supports that where one of the purposes of the conspiracy was to hide damaging information, that the ultimate consummation through the retainer’s agreement is a continuous course of conduct, and it doesn’t really matter that it happened after the election rather than before,” Mr. Colangelo said.

Mr. Bove argued there was also no evidence that President Trump or The Trump Organization took a deduction on the payment in question.

“There’s just not enough for this to go to the jury,” Mr. Bove said.

The court took a break.
<h2>Attorneys Argue Over ‘Proof’</h2>
Mr. Colangelo said they opposed the use of the word “proof” as it was not required for the object crime.

The defense argued it was necessary with this charging structure.

“Judge, we think that the government has to put forward some proof, because if they don’t there is no predicate to elevate the 175 [falsified records] charges up to a felony,” Mr. Bove said. “There does need to be proof. Otherwise the jury could find there was conspiracy to promote President Trump’s campaign without unlawful means. In that event there’s no 175-12 conspiracy and there’s no basis to elevate this up to a felony.”

Mr. Colangelo cited precedent with a case where the People were not event required to identify any object crime, but they did in this case to make the “presentation of evidence as clear as possible to the jury.”

“What we have to prove is the defendant’s intent, and his intent to aid or conceal it,” Mr. Colangelo said.

Mr. Bove argued in the facts in this and the cited case were significantly different.
<h2>Attorneys Argue Over Definition of ‘Criminal Conspiracy’</h2>
Mr. Bove argued both levels of charges have a willfullness component and that the tax predicate should not go to the jury.

“What I propose is, remove President Trump from the equation. The government doesn’t have to establish this crime in its entirety but the concept of presence is important. We think this is an accurate statement of the law that will be extraoridnarily important to the jury’s deliberations if they get to the point of considering a felony,” Mr. Bove said. “The criminal conspiracy predicate here is distinct from accessorial liability.

Mr. Colangelo said President Trump’s attempts to conceal would be enough to establish guilt.

“The defendant himself doesn’t have to have committed this crime to be guilty, it’s sufficient if he took actions to conceal it,” Mr. Colangelo said.

“This would be confusing and would mislead the jury with a skewed understanding of the facts,” he argued.

Mr. Bove argued the activities in this case were not criminal and have been “practiced by candidates around the country for decades.”

“We need to be clear with the jury about the fact that, when they’re looking at this case, evidence of President Trump having intent to commit or conceal a criminal conspiracy, and that’s what we’re trying to capture here in the multiple conspiracies instruction,” he argued.

Mr. Colangelo argued it was “irrelevant whether there was a single conspiracy or multiple ones as long as he had intent to conceal.”

“The most critical point here is that the jury does not need to include unanimously what the unlawful means were. The key portion is that there has to be some instruction but the jury does not have to unanimously agree,” he argued.

Mr. Bove said that “assuming this is going to go to the jury” they believed it was important to clarify criminal intent in the circumstances of this case.

The judge told Mr. Colangelo, “you’re asking me to change the law and I’m not going to do that.”
<h2>Attorneys Argue Over ‘Intent to Conceal’</h2>
Defense attorneys proposed adding to “the intent to conceal another crime.”

“It’s an important point here, because of the way that the government’s charges are structured,” Mr. Bove said.

Mr. Colangelo argued, “there’s nothing in this statute about two separate intents.”

He added that prosecutors “obviously agree that the People have to establish two elements, the intent to defraud and that the fraud was to conceal another crime.”

The judge said it would be a “material change in the statute” to add a “second level of intent, for lack of better term” as it was incorporated by reference into the first charge.

“‘The defendant did so with the intent to defraud,’ that’s the intent, that included the intent to commit another crime,” Justice Merchan said. “So I’m not going to change the statute, I’m going to leave it.”
<h2>Judge Asks About ‘Intent to Defraud'</h2>
Justice Merchan asked Mr. Bove to explain the opposition to “intent to defraud.”

“We’re dealing with an enhanced intent element to elevate this to a felony. It really leaves nothing for the concealment of mens rea (knowledge of wrongdoing),” he said. “This instruction would be confusing because it would permit the jury to merge intent to defraud with the enhanced intent element.”

Mr. Colangelo argued this was a term with an actual definition and if they were to give the jury more guidance “it’s in defining ‘intent to defraud.'”

The judge reserved his decision.
<h2>Judge Reserves Decision on Language About Accessorial Liability</h2>
Justice Merchan initially said he would strike “reasonably foreseeable consequences” as per the defense’s request, but reserved judgment.

The defense argued that the cases the prosecution cited to define accessorial liability were not jury instruction cases.

“There has to be corresponding intent, so to tell the jury at this point in the instructions ‘you can find causation based on reasonable foreseeability,’ but to decouple that from the intent requirement, would make this wrong,” Mr. Bove said.

Mr. Colangelo raised a precedent where someone applying jumper cables to a utility box resulted in falsification of power company records, and while no one argued the person applying the cables altered records, that was the outcome.

“Irrespective of the accessorial concept, there’s a threshold definition of what it means to cause false entries,” he said. “The defendant causes false entries when he sets this whole thing in motion and that’s why reasonable foreseeability applies here.”

Justice Merchan said he would reserve his decision, but “my inclination is to strike that language from the final charges.”
<h2>Attorneys Argue Over Definition of ‘Intent'</h2>
Prosecutors proposed defining “intent” as “a person acts with intent to defraud when his conscious intent is to do so.”

The defense wanted a more specific definition, but proposed one from an opinion in a current court case, and the judge found that deviated too far from the standard charge.

“Our position is, a criminal conspiracy, an election law conspiracy is a private secret agreement, and that President Trump tried to conceal a private secret agreement of others. We think that the government’s burden requires proof that President Trump tried to conceal,” Mr. Bove said.

Justice Merchan said he would “stick with the standard charge.”
<h2>Judge Decides on Language About Cohen Convictions</h2>
The parties debated about language about the number of Mr. Cohen’s criminal convictions. The judge reminded the attorneys that it is important the jury is not led to believe Mr. Cohen’s conviction is an indication that the defendant in this case, President Trump, is also guilty.

“I think what we can do is, strike the ‘convicted of’ language, leave ‘participated in,'” Justice Merchan said, while warning the defense against trying to “take advantage” of that language is arguing Mr. Cohen was “convicted” or “participated” in different crimes to imply guilt or innocence of the defendant.

“The People still can’t go so far as to say that if Mr. Cohen pleaded guilty of a crime, then Mr. Trump must be guilty. They can’t go there,” Justice Merchan said.
<h2>Attorneys Argue Over ‘Legitimate Press Function'</h2>
The parties debated the use of “legitimate press function” and how much explanation to include, and the judge allowed the inclusion of additional context by the defense.

“There is evidence that AMI in this case very much wanted to resolve their exposure and move forward,” Mr. Bove argued. “In addition to that, the FEC very much relied on the non-prosecution agreement for fact finders.”

Justice Merchan said he wanted to stay away from too many facts from that separate case but did not see any prejudice to prosecutors by including some context the defense proposed.
<h2>Attorneys Define Contribution</h2>
The defense and prosecution submitted examples of decisions the FEC had issues, and the judge reviewed them while reserving a decision.

“Would I have made the payment irrespective of the candidacy or not?” Mr. Colangelo quoted. “We think that subjective valuation is the way that regulation is applied.”

Justice Merchan said his inclination was to use both the defense and prosecution’s proposals.

“I think they both work well together. Again, I’m going to reserv a decision on that,” he said.
<h2>Defense Argues Charge Is ‘Ambiguous’</h2>
Justice Merchan moved on to the defense’s request to dispute “the purpose of influencing an election” as an offense that requires a clear and unambiguous link to the Trump 2016 campaign.

“Our position here is that this type of instruction here is necessary to make clear to the jury that there is a zone of First Amendment-protected activity,” Mr. Bove said. He argued that the Supreme Court has found such language “ambiguous.”

Mr. Colangelo argued this was irrelevant.

“It’s not necessary to define those terms,” Mr. Colangelo said. “One, we think the jury probably needs less, not more on its instructions, and we think ‘for the purpose of influencing an election’ is a pretty simple phrase that the jury can understand.”

“I agree, I think that the concerns you’re expressing will be addressed in other areas of the charge. Here it becomes confusing. We want to make it as easy as possible for the jury,” Justice Merchan said.

Mr. Colangelo asked for additional language for the jury to understand how the law would be applied here.

The judge reviewed examples provided by both sides, and proposed leaving in language that if a payment was made, even if it had an impact on the campaign, it should not be treated as a campaign testimony.
<h2>Judge Asks About ‘Intent’</h2>
Mr. Blanche argued that New York law recognizes that conspiracy charges require a “willfully” component.

“Falsified business records in the first degree requires that there be intent to commit another crime, so how do you respond to that?” Justice Merchan asked.

Mr. Colangelo responded, “the crime is established through the formation of a conspiracy and its execution through unlawful means.”

“More broadly, your honor, as you may have seen from our proposed FICA charge, we think there is value in tailoring the ‘unlawful means’ instructions more narrowly and more concisely than in our original proposal,” he said.

“The falsifying business records offense is permitted when the defendant has intent to conceal another crime, but the object crime doesn’t need to be completed,” Mr. Colangelo argued.

Mr. Bove argued that the mens rea, or knowledge of wrongdoing, for the conspiracy charge has to match the criminal object in the charges.

“Otherwise you just have a civil conspiracy that can’t be used to convict Mr. Trump,” Mr. Bove argued.

The judge said he would reserve his decision “on the ‘willfully’ issue.”

Prosecutors Say ‘Unlawful’ Doesn’t Mean ‘Criminal'

Prosecuting attorney Matthew Colangelo argued they were not required to present a criminal violation.

“The election law says a 152 violation occurs when two or more people conspire to promote someone’s election to office by unlawful means. Unlawful means doesn’t mean criminal, it means a violation of law,” Mr. Colangelo said.
<h2>Defense Argues No Criminal Violation</h2>
Justice Merchan asked the parties to start with Federal Election Campaign Act (FECA) issues.

Mr. Bove said their position is that there needs to be a criminal violation charged.

“Because conspiracy to violate, under New York election law, it’s only a crime if it has a criminal object,” he said. ‘This is an issue both at the FECA level and when you talk about that one predicate charge that’s clearly very important to us.”

Mr. Bove is referring to the falsified business record charges.

“It’s not enough for the government to establish a civil violation of FECA,” Mr. Bove said. “I understand that they don’t have to prove a violation of FECA but what they’re talking about is a civil conspiracy which can’t serve as a predicate on the business law charges.”

“The U.S. Supreme Court has held time and time again that for there to be a criminal conspiracy there has to be a criminal object,” he said.
<h2>Trump Returns to Court as Parties to Argue Motions</h2>
“I feel very good,” President Trump told reporters on the way in. “I think we’ve had a great case we’ve put on.”
<h2>Judge Schedules Summations</h2>
Justice Merchan said in a long case like this, “summations will not be quick.”

“I expect that summations from both attorneys will take at least a day. I expect my instructions will take at least an hour. My preference is not to break up summations,” Justice Merchan said.

He said that with only part of the day left today and then Thursday, it could not be done this week in a cohesive manner.

“I think the best thing we can do is to adjourn now until next Tuesday,” Justice Merchan said. “I’m asking you to come in on Wednesday. You might be tempted to think that now both sides have rested, you can kind of let it go a bit, but in fact these instructions take on more weight.”

Justice Merchan reminded jurors not to independently research issues presented at trial, and to report any attempts to influence the jury.

“Thinking ahead to Tuesday, I’m not 100 percent sure we’re going to get both summations done by 4:30, so give some thought between now and then about whether you are able to work late on Tuesday,” Justice Merchan said.

After a break, attorneys will argue on outstanding motions at 2:15 p.m.
<h2>Trump Quiet on Testimony</h2>
President Trump left the courtroom, but did not answer when reporters asked why he would not testify.
<h2>Defense Rests Case</h2>
Ms. Hoffinger followed up with a few more questions, and Mr. Costello confirmed that he and Mr. Citron next met with Mr. Cohen on May 3, 2018. During that meeting, Mr. Citron had given Mr. Cohen a retainer agreement that Mr. Cohen never signed.

Mr. Costello stepped down from the witness stand.

“Your honor, the defense rests,” Mr. Bove said.

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