Thread by @JonathanTurley

Judge Merchan has erred on the side of inclusion. There was a subsequent request to add more and he approved it. There is another note from the jury.

...The jury is asking for instructions on count one and how to deal with evidence and the inference to be drawn from evidence. He will read pages 7-35.

...The inference instructions are interesting. It is not the corroboration or perjury material that would have presumably focused on Cohen. However, the inference sections would go to how much that can read into the implications of testimony. Much of Cohen's testimony did not concretely establish knowledge or intent by Trump but the prosecutors insisted that they could infer from that evidence...

...Likewise, Pecker's testimony tied his actions to the election and the question is how much can the jury infer from the accounts of the Trump Tower meeting that Trump knew and approved of this effort...

...The focus on the inferential instructions is better news in my view for the prosecutors in comparison to a question for the corroboration or false testimony sections. It may indicate that there was some uncertainty or division on how much of a negative inference can be drawn from these accounts in establishing intent and knowledge on the part of Trump.

...I should have said better than good news. The corroboration and perjury instructions would have suggested that Cohen was the stumbling block. This goes to the question of weight that can be given to these accounts.  Notably, they are asking for mostly Pecker's account but also have a request for a Cohen passage.

...Of course, this all makes tea leaf readings look like a precise science...

...The jury specifically raised the "rain metaphor" in their request for the readback. That metaphor is meant to suggest that observing some facts can confirm the occurrence of other prior facts like seeing umbrellas to show that it has rained. The defense has obviously resisted the sweeping inferences from the prosecution.

...The instructions state that you can draw an inference from any fact that is proven. Hence the rain metaphor. If you go to bed that it was not raining, but in the morning you see wet grounds and people carrying umbrellas. However, the inference must not be speculative but a natural conclusion from a previously established fact.

...The instructions state that you can draw an inference from any fact that is proven. Hence the rain metaphor. If you go to bed that it was not raining, but in the morning you see wet grounds and people carrying umbrellas. However, the inference must not be speculative but a natural conclusion from a previously established fact.

...I must confess a certain frustration with the process and I expect that some jurors may have the same reaction. The insistence on only reading the instructions to this jury is so illogical and inefficient in my view. It is like returning the proceedings back to an oral tradition before the advent of writing. It is better than cave drawings but it leaves the matter to the notes of jurors to furiously write down snippets. Why? These instructions were carefully fought over and considered by the judge and counsel. One would think that the interests of justice would be served by having the language before the jury as they deliberated. Instead, they have to have it read to them like toddlers after long delays to come into the courtroom and work out what portions will be read. It is entirely counterintuitive in my view.

...The judge is again instructing that the jury can discharge the entirety of the testimony of a witness who has lied previously or in the testimony.

...They are hearing again that they must find corroboration of the testimony of Cohen because he is being treated as an accomplice. Thus, even if they find Cohen's testimony "believable," they still must have corroborating evidence to support that testimony.

...Again, it is hard to see if the inference instruction that the jury wanted to hear came up with regard to Cohen or more generally to the evidence in the case...

...They are now hearing the most troubling aspect of the instructions: that they do not have to be unanimous on what actually occurred on the second crime that motivated the falsification of the business records. They need only be unanimous that the business records were falsified to use "unlawful means" in the form of one of the three suggested crimes. That includes federal election violations, falsification of business records, or tax violations. For critics, this means that Trump could be convicted in a divided 4-4-4 jury with only a few jurors agreeing on the underlying intent linked to a specific secondary crime. jonathanturley.org/2024/05/30/a-m…

...He is again going into the FECA standard. However, the instruction does not lay out critical portions of the law that the legal expert (effectively barred by the court) wanted to reveal to the jury. Smith would have testified that "hush money" payments are not treated as campaign contributions. Moreover, even if this were not true, it could not have influenced the election because such contributions would not have had to be revealed until after the election had run. Merchan was clearly correct that it is the role of the trial judge to define what the law is. The problem is that he has been criticized for how he has portrayed the standing law and how he has allowed the jury to be repeatedly and erroneously told by the prosecutors that it is an established fact that an election violation occurred here and that that violation was ordered by Trump.

...He is now getting into the "sleeper" crime: tax violations. This alleged crime received very little attention at trial. The suggestion is that invoices in 2017 were falsely marked to avoid tax payments. It remains dangerously undeveloped in the evidence and vaguely described in the instructions.

...Judge Merchan is now finished with the instructions and they are starting the readback on the testimony by the clerks.

...They are reading the Pecker testimony where Trump said do not buy the story and Trump said that he does not believe that such purchases stop stories from getting out. He then said Michael Cohen would get back to Pecker.

......They are now hearing Pecker's testimony of when he received a call from Donald Trump. He said that Trump told him that Karen "is a nice girl" and that he heard that there was a group trying to buy McDougal's story and asked what Pecker thought he should do. Pecker recommended buying the story. Pecker said that he believed that the story would be embarrassing "both to himself and to his campaign." That is an interesting passage because it shows a dual interest in avoiding such stories. Pecker also testified that he previously killed stories for Trump (before he ran for office) and did so for a number of other celebrities.

...The jury is now hearing another snippet from Pecker when the same phone call came in while Pecker was at an investor's meeting. This second recollection included that Trump said "I normally do not buy stories because they always come out." That is the second such observation from Trump. Pecker pushed that they should purchase it.

...They are now on to the next snippet. This is the direct examination of Pecker by Steinglass on the agreement that was not executed. Pecker testified that he no longer wanted to be reimbursed for the money paid to McDougal in speaking with Cohen. He said that he was not going forward and wanted to "rip up the agreement." He said Cohen was "screaming" at him and said that "I am the lawyer...and can't understand why he is concerned."

......They are now getting into request number three on Pecker's direct examination on the Trump Tower meeting.

......Pecker says that Hope Hicks was in and out of the meeting. Trump and Cohen were present. Pecker said that he did not know what the purpose of the meeting was. He said that he was asked what the magazine could do to help the campaign. Pecker said that he intended to run positive stories on Trump, negative stories about opponents, and remain the "eyes and ears" for Trump including any stories involving women.

...Notably, this account said that it was meant as a more general discussion of helping the campaign but included a reference to stories involving women. Pecker said that "in a presidential campaign" it was common for such stories to come forward based on his "past experience" with other campaigns. He said that he expected that would be the case with Trump as well given his dating of many women. Pecker also said Bill Clinton's womanizing would also be a draw for his readers as were negative Hillary stories. He said it was "easy for him to say that" because it would help his magazine.

......Pecker said that this was his plan going forward since it was "mutually beneficial" and only would "increase sales of the National Inquirer." He said that it would obviously also benefit the campaign. Clearly this testimony cuts both ways. It shows that Pecker was going to follow that same pattern out of his own interest but also said it would benefit Trump...

...The jury just heard that Pecker was later pushed to distinguish that killing negative stories on Trump benefitted the campaign but pushing positive stories benefitted the publication. The whole meeting only lasted 20-25 minutes. Pecker did say that he wanted to keep his helping the campaign "as quiet as possible."

...When I say he erred on the side of inclusion I meant only that he preferred to include rather than exclude. I agree with that approach generally.

...The jury is now hearing on cross examination that Pecker was mistaken on the date of the meeting. Pecker also said that when he testified before the grand jury that he was mistaken on the date. I frankly do not see this as a serious problem, but the defense hammered on it.

......The defense pushed Pecker who admitted that there are gaps about what occurred ten years ago...

......The defense then pressed Pecker on the discussion about Bill and Hillary Clinton and the tabloid was already running those stories. The defense pressed Pecker on the nonprosecution agreement. This included the August meeting. He noted that Pecker did not originally refer to Hope Hicks being present...

...They are now reading a different portion of Pecker's cross examination. Pecker said it was "easy to say" that he would continue his practice on running interference on these stories. Pecker admitted that at the key meeting there was no discussion of a "catch and kill" effort.  He also said that the Stormy Daniels story was not part of the August 15 meeting. (This was the line, I believe, that the prosecutors wanted to keep out on the rereading). Pecker confirmed again that there was no discussion of a catch and kill or payment for any stories.

...However, Pecker did say that he did not use "catch and kill" but did refer to using the company resources to suppress negative stories as he had done for Schwarzenegger.

...He also testified that he wanted nothing to do with the Stormy Daniels matter in later discussions with Cohen. He said that he wanted "nothing to do with a porn star."

......Pecker said that he called Cohen about the Daniels story because he expected Cohen was "go ballistic" if he heard about such a story. He said he promised to be "the eyes and ears" on such matters...

...They are now up to request number four and Cohen's testimony on the Trump Tower meeting.

...In the direct examination of Cohen, he said that the meeting in Trump Tower was a discussion of how they could "place positive stories about Mr. Trump" as well as "negative stories" on opponents. He confirmed that Pecker would let them know about negative stories that might be coming out...

...Notably, the meeting sounds like a general effort to enlist the support of the newspaper, something that is common. Various media outlets were well known to run interference for the campaign. The portion from Cohen was pretty short in comparison to that of Pecker...

...The jury is now going back to deliberations.

...Overall, I thought that the testimony helped both sides. The Trump Tower meeting did not deal with Stormy Daniels and was only around 20-25 minutes in enlisting the help of the publication. It was a general discussion in seeking the support of Pecker who said that it was in the interests of the magazine to continue to run positive stories while also avoiding negative stories.