Thread by @AnnaBower

Good morning from 100 Centre Street, where it’s DELIBERATION DAY in Donald Trump’s criminal trial on 34 felony counts for falsification of business records.

Could today be the day that 12 New Yorkers decide the fate of the former President?

Follow along as I live tweet ⬇️👇

Yesterday was a marathon day for the jurors. They heard closing arguments from both the defense and the prosecution. Josh Steinglass wrapped up his summation for The People around 8 p.m. ET.

The @lawfare team discussed live last night 👇 ⬇️

youtube.com/live/KmaRmu_7B…

What to expect this morning?

At 10 am ET, Justice Juan Merchan is set to “charge the jury”—meaning he will provide instructions to the jurors on what the law means and what the jury must find in order to return a guilty verdict against Trump.

After Justice Merchan instructs the jurors on the law, they'll be sent to the jury deliberation room.

How long will deliberations last? No one knows!

But if I had to guess, I'd say it's unlikely that the jurors return a verdict today. Thursday or Friday is more likely.

Despite the fact that today will mostly involve waiting around, The Lines for the courtroom and overflow room were particularly long.

I swapped into our courtroom seat for heroic colleague @TylerMcBrien. Fingers crossed he gets into overflow!

By the way, if you want to help @lawfare ensure that both Tyler and I get into court next time, might I suggest a one-time donation to support our non-profit trial coverage?

Your support helps us cover the cost of expenses like line sitters!

givebutter.com/c/trumptrials/…

Back in courtroom 1530, the prosecution and the defense have just arrived.

Trump takes his seat at the defense table alongside his legal team.

In the entourage today, it's the usual suspects, including Don Jr. and Boris Epshteyn.

For those waiting with bated breath to learn whether @TylerMcBrien will make it into the overflow room: HE MADE IT!

Phew. 🙏🙏🙏

@TylerMcBrien Here we go: "All rise," and Justice Merchan sweeps into the room.

The parties introduce themselves.

I believe you were both presented with the proposed verdict form, Justice Merchan says, and you initialed it.

Alright, let's get the jury, please, Justice Merchan tells a court officer.

The jurors file in.

Members of the jury, I will now instruct you on the law, Justice Merchan says.

He'll start with general principles of law that apply to every case, then move to the elements of the charges in this case.

The jury WILL NOT receive copies of the instructions, according to Justice Merchan.

But during deliberations they can ask for the instruction to be re-read to them if needed.

He starts with the meaning of a "fair" juror: A person who will be impartial, and decide without bias or prejudice based on, for example, race, gender, sexual orientation.

A fair juror will be mindful of stereotypes and attitudes and shouldn't let that affect their verdict.

Justice Merchan reminds the jurors that people have unconscious or subconscious biases.

Make sure you decide based on the evidence, and not based on stenotypes..."Justice requires no less."

You must set aside biases or prejudices against the defendant, and decide this case based on the evidence and the law.

Remember also that you may not consider or speculate about matters related to sentences or punishment.

Consider only the evidence. This includes witness testimony, exhibits in evidence, and stipulations agreed to by the parties.

Testimony stricken from the record must be disregarded.

You can ask to see exhibits in evidence if needed.

In evaluating the evidence, you can consider any fact that is proven and any inference drawn from those facts.

Justice Merchan explains what an inference is, providing the classic example of an inference that it rained while you slept if you wake up and see people with umbrellas and in raincoats.

Justice Merchan explains that some exhibits were admitted into evidence for a limited purpose only.

He reminds the jurors of some of the limiting instructions he's provided during the trial:

First, he says, AMI's non-pros agreement and conciliation agreement with the FEC. It's to be used to evaluate David Pecker's credibility and some of the surrounding circumstances, but it's not evidence of Trump's guilt or innocence.

Similarly, Cohen's FEC investigation, his attorney's responses to that investigation, and his guilty pleas related to campaign finance are to be used only to assess Cohen's credibility as a witness and to provide context for some of the events that followed.

There are other exhibits that contained hearsay and were not admitted for the truth of the matter asserted. For example: The National Enquirer headlines were admitted to show that the articles were published, not that the headlines were true.

Justice Merchans tells the jurors that the People have the burden of prove. They must prove the charges beyond reasonable doubt. The defendant is not required to prove that he is not guilty.

Reasonable doubt means that the people must prove beyond a reasonable doubt every element of the crime.

If the People fail to satisfy this burden, you must find the defendant not guilty.

What does proof beyond reasonable doubt mean?

The law does not require the people to prove guilty beyond ALL doubt, but the proof must be stronger than probable doubt.

Now we move to the credibility of witness.

The jurors must decide whether a witness told the truth. If you find a witness testified falsely, you may disregard some or all of that testimony.

At one point, as Justice Merchan reads these instructions, a loud noise momentarily erupts from the phone of someone in the front row, where Don Jr. and Alina Habba are seated. It sounds like a news broadcast.

Don Jr. appears to stifle a laugh as he looks over at Alina Habba.

Back to the jury instructions: Under our law, Michael Cohen is an accomplice.

He gives a variation of the parties' proposed "accomplice as a matter of law" instruction:

documentcloud.org/documents/2468…

I will now instruct you on the law applicable to the charged offence, Merchan says. That charge is falsification of business records in the first degree.

He starts with an instruction on accessorial liability: The idea that a person can be help liable for the criminal acts of another provided that (1) he solicited, requested, commanded, or intentionally aided that person to engage in the criminal conduct, and (2) he did so with the requisite state of mind required for the commission of that offense.

documentcloud.org/documents/2468…

Now Justice Merchan explains the elements of falsifying business records in the first degree.

(Here's the parties' proposed instruction: )documentcloud.org/documents/2468…

In reading the charge, Justice Merchan omits two lines that had been requested by the prosecution and defense, respectively: The "lead into error or disadvantage" instruction requested by defense, and the "reasonably foreseeable" language requested by the prosecution.

Justice Merchan moves onto instruction about the "object offense" -- the offense that Trump allegedly intended to commit or conceal through the falsified business records.

He omits much of the disputed language requested by the defense in the proposed instructions: documentcloud.org/documents/2468…

Now Justice Merchan explains the People's three theories of "unlawful means" under the 17-152 object offense: (1) FECA violations, (2) tax laws, (3) falsification of other records.

Merchan reads the count-specific instructions, omitting the defense requested instruction in blue:

Merchan explains that the underlying law he just explained applies to each count in the indictment, which all relate to discrete records (invoices, checks, ledger system vouchers).

Merchan proceeds to explain the precise records underlying each count -- Cohen's invoices, the checks signed by Trump or others, the Trump Org ledger entries.

Lather, rinse, repeat for each count and the corresponding document.

Merchan now repeats the law regarding falsifying business records in the first degree.

He reads this almost verbatim, minus the blue requested language. (He adds that intent need not require premeditation.)

How to determine intent? Merchan tells the jurors that they can consider the defendant's conduct and all the circumstances surrounding that conduct: what they did or said, etc.

He reads this instruction about intent to defraud, excluding language "including the government or the voting public."

Back to the instruction on the object offense: 17-152.

He instructs the jurors as follows, omitting the blue highlighted language requested by the defense.

He reads the instruction on the "unlawful mean" under 17-152, omitting the blue highlighted language requested by the defense.

Justice Merchan reads instructions on the Federal Election Campaign Act. Notably, he *includes* the "wilfully" language requested by the defense. (He omits the sentence requested by the defense regarding limits on a candidate using personal funds in 2015 and 2016.)

Justice Merchan explains the difference between "intent" (conscious objective or purpose) and "motive." Motive is not an element of the crime charged. They don't have to show a motive. Nonetheless, evidence of motive may be considered by the jury.

In reaching this verdict, it must be unanimous, Justice Merchan says. You must consult with each other, reason together when you deliberate.

Each of you must decide the case for yourself but only after fair and impartial consideration with the other jurors. Don't decide because you want the trial to end or you're outvoted.

You may see exhibits entered into evidence on request, Justice Merchan says. You may also request to hear testimony read back to you.

When you reach a verdict of guilty or not guilty, you will be asked to come back to court for the verdict. The foreperson will be asked to read the verdict, and the entire jury will be asked if that is their verdict. On request of the parties, each juror can be asked individually.

Justice Merchan turns to the verdict form. He explains that for each count, he has added language to identify the corresponding record (check, invoice, voucher) related to that count.

Finally, Merchan says as he gets to the end of his charge to the jury, there are a few rules you must follow during deliberations. Deliberate only while in the jury room. You must discuss the case only among yourselves. Must not permit anyone to discuss the case in your presence

The law requires that you communicate to me in writing during deliberations to ensure that there are no misunderstandings. If you have a question, you can write me a note and give it to a court officer.

"That concludes my instructions on the law."

Justice Merchan invites counsel to approach the bench.

Following a sidebar, Justice Merchan tells the jurors that there is a laptop containing the evidence introduced in the case. He'll need to show two jurors how to operate it.

Then he excuses twelve jurors to begin deliberations. The six alternates are held back.

Justice Merchan tells the six alternates that he needs to keep them around in case they are needed. They'll have to hand in their cell phones and electronic devices while they wait.

Justice Merchan announces that Juror 4 and Juror 6 volunteered to learn how to operate the laptop that contains the evidence in the case.

Jurors 4 and 6 file in, huddle around the laptop containing the evidence introduced over the course of the past 5 weeks.

Justice Merchan asks Blanche if Trump consents to the jury receiving the entire laptop. He says yes.

Justice Merchan retreats to his chambers.

Trump stands, chats with Don Jr. and Alina Habba for a moment for he exits down the centre aisle.

The next time he's in this courtroom, it could be for a jury verdict.