Thread by @alegalnerd

1. The SCOTUS today struck a blow to Trump's 34 guilty verdicts surviving appellate review. In order to find Trump guilty of violating Penal Law 175.10 the jury had to find certain "facts." Significantly, the jury had to find the following "facts": (1) That Cohen's paying Stormy

https://twitter.com/baseballcrank/status/1804156359174135859

2. $130G constituted a willful violation of FECA's campaign contribution or expenditure limits; (2) That Cohen's filing a false tax return (after the election) constitutes a willful federal or knowing state or city tax law violation; or (3) That Cohen's filing false bank

3. documents in order to obtain the $130G constituted a violation of Penal Law 175.05. Without the jury making at least one of those "factual" findings, it would have been impossible for the jury to have convicted Trump of any of the 34 Penal Law 175.10 felonies.

4. Here's the Fifth (Due Process) & Sixth (Jury Trial) Amendment problem highlighted by the SCOTUS in its opinion today in Erlinger v. United States: Any "fact" that is necessary to establish a criminal defendant's guilt must be determined by a jury, unanimously, and beyond a

5. reasonable doubt. But, Judge Merchan instructed the jury that they need not unanimously agree on which of the three "fact-based" alternatives (set forth above) that the DA was relying upon to establish Trump's guilt. Under Judge Merchan's instructions, 4 jurors could have

6. found the "facts" necessary to establish one of the DA's theories; 4 jurors the "facts" necessary to establish a different theory; and 4 jurors the "facts" necessary to establish yet another one of the DA's multiple theories that were required to establish Trump's guilt.

7. In addition, Judge Merchan failed to instruct the jury that, with respect to each of the DA's "fact-based" theories they must apply the beyond a reasonable doubt standard of proof.

8. I have no doubt that if this case reaches the SCOTUS Trump's 34 Penal Law 175.10 felony convictions will be reversed likely by a unanimous opinion. The DA, however, could try and save the convictions by establishing that Judge Merchan's fundamental constitutional error was

9. harmless beyond a reasonable doubt, i.e., that Judge Merchan's error was "small" and had "little, if any, likelihood of having changed the result." The constitutional rule regarding jury unanimity and the beyond a reasonable doubt standard of proof in connection with "factual"

10. determinations applies to all criminal trials in federal and state courts. That means NY's appellate courts will have to apply this fundamental constitutional rule to Trump's appeal. Depending on what NY's appellate courts do, SCOTUS review may be unnecessary.