The jury considering the charges against former President Trump in his hush money trial must peel back several layers in deliberating whether he is guilty of 34 counts of falsifying business records.
The Manhattan district attorney’s office’s contention is that Trump illegally covered up a hush money payment his then-fixer, Michael Cohen, made to porn actor Stormy Daniels in the weeks before the 2016 election to ensure her silence about an alleged affair from a decade prior.
The case is complicated enough that the jurors sent a note Wednesday, just a few hours into their deliberations, requesting the judge repeat his legal instructions.
To reach a guilty verdict, the jurors will have to go through several steps to reach the first criminal conviction of a former U.S. president.
If the jurors all agree one of the steps wasn’t proven, they must return a not guilty verdict. If they can’t reach agreement, the trial will end in a hung jury.
Here’s what needs to happen, step-by-step.
Did Trump cause false business record entries?
The first thing the jury must determine is whether Trump caused false business record entries related to the hush money payment.
Each of the 34 counts Trump faces for falsifying business records corresponds to a document generated when Trump later allegedly repaid Cohen for the hush money to Daniels. Trump denies the affair.
The counts fall into three buckets: 11 invoices Cohen filed to Trump, 11 checks sent back to Cohen and 12 ledger entries reflecting those transactions.
Prosecutors say Trump falsely recorded the reimbursements to Cohen as a legal expense in order to cover up the hush money payment.
The former president’s attorneys, meanwhile, say the records were truthful because the payments were for Cohen’s services as personal attorney to the president.
Even if they were false, Trump maintained a degree of separation from his underlings, the defense argues, suggesting Cohen went rogue in an aim to impress his boss.
To reach a guilty verdict, jurors will have to decide the records are false and that Trump was responsible for them.
Did Trump have an intent to defraud?
Even if the jury decides the records were false and Trump caused their entry, reaching a guilty verdict requires it also find he had an intent to defraud.
“A person acts with intent to defraud when his or her conscious objective or purpose is to do so,” Judge Juan Merchan told the jury.
“In order to prove an intent to defraud, the people need not prove that the defendant acted with the intent to defraud any particular person or entity. A general intent to defraud any person or entity suffices.”
Prosecutors contend Trump defrauded the voting public, ensuring the hush money payment to the porn actor fits into a larger scheme to kill negative stories about Trump before Election Day to clear his path to the White House.
The defense argued that any efforts by Trump’s allies to quash bad press — and boost stories detrimental to his opponents — could be chalked up to running a presidential campaign.
Did Trump have an intent to commit, conceal or aid another crime?
Prosecutors are seeking the felony version of the falsifying business records charge, which includes an additional requirement, often referred to as the “bump up.”
To reach a felony conviction, the jurors must find the former president falsified the 34 records with an intent to commit, aid or conceal another crime.
“Under our law, although the people must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed,” Merchan told the jurors in his instructions.
Prosecutors accuse Trump of intending to violate a provision of New York election law that makes it a crime to conspire to “promote or prevent the election of any person to a public office by unlawful means.”
Did Trump conspire to promote his candidacy by ‘unlawful means’?
The district attorney’s office presented three different theories of “unlawful means” to the jury.
First, prosecutors noted violations of the Federal Election Campaign Act (FECA), which restricts corporate and individual contributions to federal political candidates.
In 2018, Cohen pleaded guilty to violating FECA when he made the $130,000 hush money payment to Daniels, exceeding the $2,700 individual contribution cap in place at the time.
Prosecutors have also highlighted how the parent company of the National Enquirer violated FECA’s ban on corporate contributions by paying former Playboy model Karen McDougal $150,000 in hush money to stay quiet about her salacious accusations against Trump, which he also denies.
Second, prosecutors argue other business records were falsified. They point to paperwork generated when Cohen set up bank accounts under false pretenses and when he later wired the hush money to Daniels’s lawyer. Prosecutors also cite 1099-MISC forms the Trump Organization later issued to Cohen.
Third, prosecutors cite violation of tax laws, arguing the reimbursements to Cohen were miscategorized as income.
In instructing the jury, Merchan said the jurors do not have to all agree that a single one of the theories stands. Instead, he said they must all agree that one of the theories works, meaning some could agree with the prosecutors’ first arguments, others with the second and others with the third.
“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were,” Merchan told the jury Wednesday.
Trump and conservatives have latched on to the instruction, insisting the defendant is not receiving a fair trial since jurors can disagree on which of the three unlawful means prosecutors proved.
Trump’s lawyers had objected, but the judge last week agreed with prosecutors that the defense’s request would amount to rewriting the law.
“We understand the defense opposes that, but there’s sort of well-established New York law that a jury does not have to be unanimous about unlawful means,” prosecutor Matthew Colangelo said in court last week as the parties debated the jury instructions.
Colangelo argued that establishing such a requirement would amount to rewriting the law from what “the court would do in every other case.”
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