Editor's note: Norman Eisen is a CNN legal analyst and editor of “Trump on Trial: A Guide to the Criminal Trials of Election Interference.” He served as counsel to the House Judiciary Committee during the first impeachment and trial of then-President Donald Trump. The opinions expressed in this commentary are Eisen's own. Read more opinion pieces on CNN.
CNN —
“We will now begin the verdict process, which is the only active part of your jury service.”
After Judge Juan Marchand's remarks, the 12 jurors in Donald Trump's Manhattan trial retired on Wednesday to decide whether the former U.S. president was guilty of a crime. They are the first jurors in 235 years of U.S. history to face this crucial question. And by the end of the day, with multiple requests to leave the jury room, it was clear they were taking their crucial role seriously.
Trump's status was not mentioned anywhere in the judge's detailed legal instructions, in which the jury spent the first 80 minutes of the morning explaining the laws that apply to the case, the charges and their evaluation of the evidence. But the defendant's identity will undoubtedly influence the deliberations of the jury as they gathered in one of the jury rooms on the 15th floor of Manhattan Criminal Court.
The jury room is unadorned — a rectangular table with 12 seats, a water cooler, and separate bathrooms for men and women — but it will be brimming with foreboding as 12 Americans decide whether Trump is guilty or innocent — a decision that could have profound implications not just for Trump personally, but for the outcome of this year's presidential election and potentially a history that will be dramatically altered after the November election.
Courtesy of Norm Eisen
Norm Eisen
Trump is accused of forgery in an illegal repayment scheme to conceal $130,000 in hush money paid to adult film actress Stormy Daniels to keep her quiet about allegations, which Trump denies, that she had a sexual relationship with Trump ahead of the 2016 presidential election.
The judge took the time to walk the jury through the law they must apply to determine whether Trump committed 34 felonies – one for each of the 11 invoices, 12 bookkeeping entries and 11 checks at issue (9 of which were signed by Trump himself). Judge Marchan explained that the jury must find beyond a reasonable doubt that Trump “made or caused” to make false statements on those documents, and that he “did so with intent to defraud (i.e., to lie)” and with “intent to commit, aid or abet or conceal another crime.” This was consistent with the three evidentiary questions that shaped the outcome, as detailed in yesterday's trial journal:
Judge Marchan detailed the legal rules the jury must apply in reaching its decision. For example, he explained that another alleged crime was conspiracy to “promote or obstruct election to public office by unlawful means.” The judge listed a number of possible offenses that a jury could find based on the evidence, ranging from campaign finance violations to other document falsifications and tax evasion.
Judge Marchan also gave the jury a number of other rules to guide them. Most importantly, they must acquit if they have a reasonable doubt — “an honest doubt as to the defendant's guilt for which there is a reason based on the nature and quality of the evidence” — and they must convict if they are convinced of all the elements beyond that doubt — not all doubt, but only a reasonable kind of doubt.
Now, these 12 New Yorkers are wondering whether they have those doubts — questions that concern not just our legal system, but a core feature of our democracy.
Deliberations often begin with the jury foreman presiding and the jurors seated around a rectangular table sharing their thoughts going into deliberations. Some jurors are more vocal, others less vocal, and some do not speak at all until the jury foreman or another juror suggests that each juror take turns saying whether they think the defendant is innocent, guilty of some or all of the charges, or are undecided.
An internal vote often occurs at or near the beginning of arguments, but often, but not always, the vote is not unanimous. The jurors' real job is to ask each other questions, learn from each other, and send notes to the judge if they have legal questions or questions about what exactly was said in the testimony.
That bargain, as all 12 of us struggle to reach an agreement, is the essence of the jury selection process, and jurors take it very seriously. I say that from experience, having tried cases before juries, interviewing jurors after the verdict, and having served on a jury several times myself.
“In my more than 30 years of legal experience and weeks of testimony in court, I have never seen a more educated, attentive and determined jury. I am confident that they will take each other's lead, thoroughly examine the evidence and carefully consider how to apply the law.
The evidence came at 2:56 p.m., when a juror sent the judge a four-part memo requesting information about a series of communications with former National Enquirer publisher David Pecker, including direct communications with Trump, about aspects of an alleged “catch-and-kill” conspiracy (to fund and cover up negative stories about Trump) to benefit his campaign. It's dangerous to read jury notes like tea leaves, but to me the memo feels like an ominous sign for the former president.
In his closing arguments Tuesday, attorney Todd Branche urged jurors to take multiple exit routes before landing on the alleged conspiracy, such as finding there was no evidence of forged documents or that Trump had no role in creating them, but the jury's desire to reconsider Pecker's testimony appeared to lead them past that and to the underlying election conspiracy allegations.
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Moreover, as Blanche also argued, they do not ignore the testimony of Trump's former lawyer Michael Cohen (and the lawsuit with him), but instead focus on independent witnesses who corroborate his testimony. That seems to be a point the jury emphasized by also asking for the testimony of Pecker and Cohen about key meetings, as if they were seeking corroboration that the prosecution emphasized. And the actual content of the events covered in the memo to Marchan – the August 2015 meeting at Trump Tower where the election conspiracy was allegedly formed, the hush money paid to former Playboy model Karen McDougal (who also allegedly had an affair with Trump) to carry out the conspiracy, and Pecker's eventual withdrawal of his request for the payment to McDougal to be refunded – all tend to incriminate Trump, as detailed in previous trial diaries.
As we sat in the courtroom waiting for the request on the first note to be processed, the buzzer sounded again, signaling that the jury had made another request, this time for the judge to reread the jury instructions, another sign that the jury was paying close attention to their deliberations.
It remains to be seen how long the proceedings will take, but developments this afternoon suggest that they will not be over quickly — and certainly not for any defendant, especially this one.
