When a New York jury convicted Donald Trump of 34 felonies last week, it was relying on a chain of legal reasoning that involved various possible combinations of interacting statutes. That made the case against Trump hard to follow. It also raised a due process issue that Trump's lawyers are likely to highlight on appeal.
The charges against Trump involved 11 invoices, 11 checks, and 12 ledger entries that allegedly were aimed at disguising a hush-money reimbursement as payment for legal services. Shortly before the 2016 election, Michael Cohen, then Trump's lawyer, paid porn star Stormy Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump. When Trump paid Cohen back in 2017, prosecutors said, he caused the falsification of business records to conceal the nondisclosure agreement with Daniels.
Falsification of business records, ordinarily a misdemeanor, requires an "intent to defraud." Treating the offense as a felony requires proving an additional "intent to commit another crime or to aid or conceal the commission thereof." The prosecution's main theory of "another crime" relied on Section 17-152 of the New York Election Law. That obscure, little-used provision makes conspiring to promote a candidate's election "by unlawful means" a misdemeanor. But the prosecution never settled on a theory of "unlawful means," and Juan Merchan, the judge who presided over the trial, told the jurors they did not have to agree on that point.
Merchan presented the jurors with three possible theories. The first theory required viewing Cohen's payment to Daniels as an excessive campaign contribution—a contentious reading of the Federal Election Campaign Act (FECA). According to the second theory, Trump facilitated tax fraud by enabling Cohen to falsely characterize his reimbursement as income (a counterintuitive definition of tax fraud, since that misrepresentation actually increased Cohen's tax bill). And according to the third theory, Trump falsified business records to cover up the falsification of other business records, possibly including documents related to the Daniels payment and 1099-MISC forms mischaracterizing his reimbursement as income.
The FECA theory was legally shaky. It hinged on the fuzzy distinction between personal and campaign expenditures, and it assumed that Section 17-152 applies to a federal election, a context in which federal law generally pre-empts state law. The tax theory and some versions of the double falsification theory were not just legally shaky but logically impossible, since they posited that actions taken after the election could have retroactively promoted Trump's victory "by unlawful means." And because unanimity was not required, we don't know which theory the jurors found most persuasive. Even if they split three ways on exactly how Trump might have violated Section 17-152, Merchan said, they could still deliver a guilty verdict.
That's fine, George Washington University law professor John Banzhaf says. "There are many situations in which a jury is required by law to reach a unanimous decision as [to] guilt or innocence," he writes, "but [does] not necessarily agree as to each and every underlying aspect or particular."
In an emailed version of that commentary, Banzhaf likens Trump to a defendant accused of beating someone to death. "There may be a perfectly valid conviction," he says, "even though witnesses were unsure about, and jurors did not necessarily agree on, whether the beating was with a baseball bat, a 2X4 wooden plank, or a piece of metal pipe."
Murder, however, is inherently criminal. Under Section 17-152, by contrast, conspiring to promote a candidate's election is a misdemeanor only if it is done "by unlawful means." That's a crucial element of the crime, which in turn makes it crucial to the claim that Trump falsified business records with the intent of aiding or concealing "another crime."
Merchan "hand-selected three laws—federal election law, falsification of 'other' business records and 'violation of tax laws'—as the 'unlawful means' by which state election law was violated," former Justice Department lawyer David B. Rivkin Jr. and Florida International University law professor Elizabeth Price Foley note in The Wall Street Journal. "Mr. Trump received no notice of any of these offenses, and the prosecutor briefly alluded only to federal election law, during the trial."
Bradley Smith, a former chairman of the Federal Election Commission, was prepared to testify for the defense about the problems with characterizing the Daniels payment as an illegal campaign contribution. But Merchan excluded that testimony, ruling that Smith could not testify as an expert witness on matters of law.
In any case, since neither the prosecutors nor the jurors had to pick a particular theory of "unlawful means," Trump's lawyers were at a disadvantage. How were they supposed to rebut the claim that Trump tried to facilitate or cover up "another crime" when the nature of that crime was so hazy?
"The prosecution," Rivkin and Foley write, "involved (1) a misdemeanor elevated to a felony based on an 'intent to commit another crime,' (2) an indictment and trial that failed to specify, or present evidence establishing, another crime the defendant intended to commit, and (3) a jury instruction that the other crime was one that necessitated further proof of 'unlawful means.' It's a Russian-nesting-doll theory of criminality: The charged crime hinged on the intent to commit another, unspecified crime, which in turn hinged on the actual commission of yet another unspecified offense."
That confusing mess, Rivkin and Foley argue, violated Trump's right to due process. "No principle of procedural due process is more clearly established than…notice of the specific charge," the U.S. Supreme Court declared in the 1948 case Cole v. Arkansas, "and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." According to the Court's 1970 decision in In re Winship, "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Those "three due-process precepts—notice, meaningful opportunity to defend, and proof of all elements—were absent in Mr. Trump's trial," Rivkin and Foley write.
In the 1991 case Schad v. Arizona, the Court shed some light on what those principles require. Like Banzhaf's hypothetical scenario, Schad involved a murder charge. The Court narrowly ruled that a jury could convict a defendant of first-degree murder without necessarily agreeing on whether the homicide was premeditated or the consequence of another felony.
Justice David Souter's plurality opinion drew an analogy to the "long-established rule" that "an indictment need not specify which overt act, among several named, was the means by which a crime was committed." In a murder case where the specific cause of death is unclear, he said, "we have never suggested that…the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone." Likewise, he said, "we see no reason…why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea."
Souter added a caveat, however. "That is not to say…that the Due Process Clause places no limits on a State's capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant's conviction without jury agreement as to which course or state actually occurred," he wrote. "The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning…carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge against him."
As Rivkin and Foley note, all nine justices in Schad "believed unanimity is required to convict when the means by which a crime can be committed are so broad that the accused doesn't receive fair notice of the basis of the charge." The New York case against Trump certainly seems to fit that description.
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