As Donald Trump’s historic criminal trial nears an end, everyone is wondering if jurors will convict him of the felony charges. But Trump’s lawyers could try a long-shot move to give them another option: convict him of misdemeanors instead.
Here’s how it would work and why the defense would — or wouldn’t — try it.
First, a refresher on how the misdemeanor case becomes a felony. The misdemeanor charge of falsifying business records in the second degree says that a person is guilty when, with intent to defraud, he “makes or causes a false entry in the business records of an enterprise.” The first-degree felony charge says that the state must prove that the intent to defraud “includes an intent to commit another crime or to aid or conceal the commission thereof.”
That raises the question of which other crime prosecutors would cite; one that they’ve pointed to is an election law that bars conspiring “to promote or prevent the election of any person to a public office by unlawful means.” That, in turn, raises the question of what the “unlawful means” are, which could include campaign finance violations like the ones Michael Cohen pleaded guilty to over the hush money scheme (though the state should emphasize the precise theory in its summation).
So, there are layers to felony charges that don’t exist with misdemeanors. The state has sought to simplify the felony narrative to an election conspiracy covered up with false records, and it may succeed in doing so. The defense, meanwhile, wants to at least complicate that narrative in the hopes of a hung jury. Cohen is poised to be the state’s final witness and is set to resume his cross-examination Thursday. It’s unclear how much of a case the defense will put on, though it has no burden, which falls on the prosecution to prove Trump’s guilt beyond a reasonable doubt.
If his lawyers feel their client is staring down near-certain felony convictions, they might consider pitching the jury on misdemeanors.
But if his lawyers feel their client is staring down near-certain felony convictions, then they might consider pitching the jury on misdemeanors as an alternative. New York law says that judges can submit lesser-included charges to the jury “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater.” The law further says that, in such situations, if either side asks for a lesser-included option, then the court must give it.
Even if they had wanted to, the shorter statute of limitations for misdemeanors barred prosecutors from bringing such charges initially, so the state shouldn’t make the lesser-included request (again, even if it wants to or could legally do so). But the defense can waive the statute of limitations.
Of course, it could be a felony-or-nothing proposition for both sides. While it might make strategic sense in a normal case, it’s difficult to see Trump letting his lawyers concede any guilt, even “only” for misdemeanors. And while incarceration is less likely for misdemeanors than for felonies, it’s not mandatory for these lowest-level felonies and it may even be unlikely if he’s convicted of them.
Ultimately, then, it’s at least partly a political calculation by the presumptive GOP nominee of how it would play, as he seeks the White House again in the hopes of avoiding more serious potential prison time in his federal cases. If he wins in November, those cases are good as gone. (The Georgia state case, which he wouldn’t be able to dismiss or pardon as president, is in limbo on pretrial appeal. Trump has pleaded not guilty to all four indictments.) But on the legal side of it, it’s an option that a normal lawyer would at least broach with a normal client. How that dynamic translates to this abnormal situation remains to be seen.
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