Opinion: I’ve observed the Trump jury. Here’s what could be happening in deliberations

Opinion by Norman Eisen

(CNN) — “You are going to begin the only active part of your jury service: You will begin the process of deliberations.”

After those words from Justice Juan Merchan, the 12 members of the jury in Donald Trump’s Manhattan trial retired Wednesday to decide if this former American president is a criminal. They are the first jury in the 235-year history of the United States to be confronted with that weighty question. And by the time the day had ended, with multiple requests from inside the jury room, it was clear they were taking their momentous role seriously.

Trump’s presidential status was nowhere to be found in the judge’s detailed legal instructions that occupied the first 80 minutes of the jury’s morning and covered the law that applies to the case, the charges, the evaluation of evidence and more. But the identity of the defendant will no doubt hang over the jury’s deliberations as they gather in one of the jury rooms here on the 15th floor of the Manhattan Criminal Courthouse.

The jury rooms are unadorned, with a rectangular table and 12 seats, a water cooler, men’s and women’s restrooms, and not much more. But this one will be crowded with portent as these dozen Americans decide the guilt or innocence of Trump with profound personal consequences not only for him but also potentially for the outcome of this year’s presidential election and for history, which could look very different after November’s election.

Trump is facing document falsification charges in an allegedly illegal repayment scheme to conceal the $130,000 hush money payment made to adult film actress Stormy Daniels. The payment was made to keep her silent about allegations that she and Trump had a sexual encounter (which Trump denies) ahead of the 2016 presidential election.

The judge took his time detailing to the jury the law they must apply to determine if Trump committed 34 felonies, one for each of the 11 invoices, 12 ledger entries and 11 checks (nine signed by Trump himself) here at issue. Merchan explained that they must find beyond a reasonable doubt that Trump “made or caused” the false entries on those documents, and “did so with intent to defraud” (that is, to lie), including an “intent to commit … aid or conceal” another crime. That tracked with the three evidentiary questions that framed the closings, as detailed in yesterday’s trial diary.

Merchan then offered a detailed explanation of the legal rules that the jury must apply to make those determinations. For example, he unpacked that the other crime alleged was a conspiracy to “promote or prevent the election of any person to a public office by unlawful means.” The judge itemized the many possible illegalities the jury can find based on the evidence — from campaign finance violations to the falsification of other documents to tax offenses.

And Merchan also provided the jurors with the many other rules that guide them. Most important: If they have a reasonable doubt — an “honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence” — they must acquit. If they are persuaded of all the elements beyond that doubt — not all doubt, just the reasonable kind — they must convict.

Now these 12 New Yorkers are wrestling with whether they have that doubt or not — a core feature not just of our legal system but of our democracy.

Chaired by the foreperson, deliberations tend to start with the jury sitting around that rectangular table and having a conversation about what they think coming into the process. Some will be more vocal, some less. Some may not talk at all until the moment comes when the foreman or another juror suggests that they go around and say whether they believe the defendant is innocent or guilty on all of the charges or some of the charges — or if they haven’t yet made up their minds.

Often, but not always, that internal poll will happen at or near the commencement of their discussion — and, also often, the vote will not be unanimous. That is when the real work of the jury begins: asking each other questions, learning from each other, sending notes out to the judge when they have a legal question or one about exactly what was said in testimony.

That push and pull as all 12 try to reach consensus is the essence of the jury process, and juries take it very seriously. I say that having tried cases before juries and having interviewed the jurors after their deliberations as well as having served on a couple of juries myself.

In my over 30 years of legal experience, and from sitting in this courtroom during weeks of testimony, I have never seen a more well-educated, attentive and determined jury than this one. I am confident they will lead each other on a meticulous exploration of the evidence and consider carefully how to apply the law to it.

We got proof of that at 2:56 p.m. when the jury sent a four-part note to the judge requesting information about a series of communications involving former National Enquirer publisher David Pecker, including his direct communications with Trump, about aspects of the alleged “catch and kill” conspiracy (to pay for and suppress negative stories about Trump) to benefit his campaign. While reading jury notes as if they were tea leaves can be treacherous, the note feels to me like an ominous sign for the former president.

Defense counsel Todd Blanche, in his closing argument Tuesday, urged the jury to take multiple off-ramps before they ever got to the alleged conspiracy, such as finding that there was no proof of false documents or that Trump wasn’t involved in creating them; instead, given their desire to revisit Pecker’s testimony, the jury seems to have sped past that to the alleged underlying election conspiracy.

Moreover, rather than disregarding the testimony of former Trump attorney Michael Cohen (and, with him, the case), as Blanche also urged, they are focusing on an independent witness who corroborates him. That is a point the jury seemed to highlight by asking as well for the testimony of both Pecker and Cohen about a key meeting, as if they are seeking the corroboration that the prosecution emphasized. And the actual content of the incidents covered in the note to Merchan — the August 2015 Trump Tower meeting at which the election conspiracy was allegedly formed; the hush money paid to former Playboy model Karen McDougal (who also alleged she had an affair with Trump) to allegedly implement the conspiracy; and Pecker ultimately backing away from seeking reimbursement for the McDougal payment — all tend to incriminate Trump, as prior trial diaries have detailed.

As we were in court waiting for the requests in the first note to be addressed, the buzzer rang again — indicating that the jury had another request. This time it was for the judge to re-read the jury instructions to them, another indicator of the care they are taking in deliberations.

We will see how long their deliberations take, but this afternoon’s developments suggest that it will not be an instant process. Nor should it be, not for any defendant — but particularly not for this one.

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