A supporter of former President Donald Trump outside Manhattan Criminal Court in New York. Photo / Todd Heisler, The New York Times
A tweet from a Fox News anchor falsely said that the jury would not have to settle unanimously on a charge to find the former president guilty.
It was a shocking assertion for anyone with even a passing knowledge of American jurisprudence: The judge overseeing the trial of Donald Trump had said that jurors could individually choose from a menu of different crimes to find the former president guilty, so long as the total of votes added up to 12.
It was also untrue.
The suggestion — made in an online post by Fox News anchor John Roberts — nonetheless found an immediate and massive audience, with some 5.7 million views on X, formerly known as Twitter. Surrogates and allies of Trump quickly amplified its arguments, as did Trump himself.
“Judge Merchan just told the jury that they do not need unanimity to convict,” Roberts wrote. “4 could agree on one crime, 4 on a different one, and the other 4 on another. He said he would treat 4-4-4 as a unanimous verdict.”
In fact, all 12 jurors had to agree to find Trump guilty to convict him of the felonies with which he was charged: 34 counts of falsifying business records. The judge in the case, Juan M. Merchan, repeatedly made this clear, saying in his instructions to the jury: “Each count you consider, whether guilty or not guilty, must be unanimous.”
Roberts sought to clarify his post in an interview Thursday (local time). By then, the idea that a non-unanimous verdict was possible had been spread by the former president and presumptive Republican nominee, as well as by his supporters.
The manner in which Trump and his allies seized on Roberts’ post reflects a right-wing media ecosystem that has been fine-tuned to create and circulate disinformation that can harm Democrats and boost political favourites, a cycle that has already been active during Trump’s trial. That process has included sustained attacks on institutions long considered both impartial and resistant to politics, including the FBI, the Department of Justice and the courts.
Condemnations of Merchan’s jury instructions soon came from Stephen Miller, a former top White House adviser; former judge and Fox News host Jeanine Pirro; and Trump’s son Eric, who suggested his father didn’t even know what he was being charged with until Wednesday morning. (Trump has known the 34 charges he faces since last year.)
Steve Bannon, the former Trump adviser and conservative media host, referred to the supposed instructions as “4-4-4″ and brought experts onto his television program to call it unconstitutional. And Republican political figures such as Senator Marco Rubio of Florida, considered a possible pick to be Trump’s running mate, also chimed in, suggesting that the judge’s instruction indicated the case was “exactly the kind of sham trial used against political opponents of the regime in the old Soviet Union.”
Trump himself posted Wednesday afternoon on Truth Social, his social media platform, that “IT IS RIDICULOUS, UNCONSTITUTIONAL, AND UNAMERICAN” that Merchan “is not requiring a unanimous decision on the fake charges against me.”
“A THIRD WORLD ELECTION INTERFERENCE HOAX!,” he concluded.
Roberts made the posting as Merchan instructed the jury Wednesday morning on how the law should be applied in the case. Trump was accused of falsifying business records to conceal a US$130,000 hush-money payment that was made to a porn star just before the 2016 election.
In those instructions, Merchan explained that under New York state law, falsifying business records is a felony only when it is done to conceal a second crime.
Prosecutors say that Trump falsified records to conceal a violation of a little-known state election law — Section 17-152 — that forbids conspiracies “to promote or prevent” a person’s election “by unlawful means.”
Merchan made clear that the “unlawful means” mentioned in the election law could include violations of any of three other measures: a federal law governing election contributions, a state law governing false business records or tax laws, including those at a state or federal level.
Merchan then said that while the jury would have to “conclude unanimously” that Trump had violated Section 17-152 to find Trump guilty, they did not have to be unanimous about the “unlawful means” that were used.
In other words, the jurors did not have to agree on which of the three other laws had been violated as he conspired to win election. The judge’s instruction is consistent with case law on the topic.
In an interview Thursday, Roberts — who anchors an afternoon show from Washington and was not in the courtroom when the jury instructions were read — said he had “never intended in that tweet to suggest that fewer than 12 jurors can convict Donald Trump of a crime.”
“I was talking about the underlying predicate crime,” Roberts said, citing the relevant passage. “I clarified, to a greater degree, the facts of the jury charge in response to someone who had commented on my tweet.”
Indeed, after his initial post, Roberts posted a more nuanced explanation of the “underlying means” the jurors could consider, referring to it as “a smorgasbord they can pick from.” Thursday, however, he also quoted a conservative legal analyst who he said called it “the ‘most troubling’ aspect of the instructions.”
There were some troubling reactions to Roberts’ initial post, according to NBC News, which reported that it had prompted users on Gab, a site popular with right-wing extremists, to make veiled threats against Merchan. One such post read: “I hear bad stuff happens to judges in their driveways.” Other online threats were also reported.
Trump repeatedly attacked the case, calling it a politically motivated “witch hunt” that was orchestrated by the Manhattan district attorney who brought it, Alvin Bragg. Merchan, who has also been a constant target of Trump, had round-the-clock security assigned to protect him as the jury deliberated.
The former president has also spread other misinformation related to the trial, and has repeated the false claim that the trial was arranged by President Joe Biden. Trump’s attacks on the judge’s daughter — a political consultant who has worked with prominent Democrats — prompted Merchan to issue an expanded gag order before the trial began, barring Trump from attacking members of his family. It also protects witnesses, court staff and jurors.
Nevertheless, the former president both railed against the gag order and violated it repeatedly, leading Merchan to fine him $10,000 and threaten jail time.
On Thursday, Trump continued his criticisms of the jury instructions, writing on Truth Social that they were “UNFAIR, MISLEADING, INACCURATE, AND UNCONSTITUTIONAL.
“They were also VERY CONFUSING (Just what the Judge wanted!),” the former president wrote, “BECAUSE THERE WAS NO CRIME!”
This article originally appeared in The New York Times.
Written by: Jesse McKinley
Photographs by: Todd Heisler
©2024 THE NEW YORK TIMES
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