As expected, Judge Juan Merchan yesterday morning provided jurors in Donald Trump’s hush money case with instructions on how to deliberate. What was far less expected, however, was the former president and his allies pushing a very specific falsehood about those jury instructions.
In the late morning, for example, a Fox News host published a message to social media that read in part, “Judge Merchan just told the jury that they do not need unanimity to convict.” Soon after, the criminal defendant himself published a related missive. “IT IS RIDICULOUS, UNCONSTITUTIONAL, AND UNAMERICAN that the highly Conflicted, Radical Left Judge is not requiring a unanimous decision on the fake charges against me,” Trump wrote.
But it was a related item from Republican Sen. Marco Rubio of Florida that stood out for me.
“Judge in Trump case in NYC just told jury they don’t have to unanimously agree on which crime was committed as long as they all at least pick one. And that among the crimes the [sic] can pick from are ones Trump WASN’T EVEN CHARGED WITH!!! This is exactly the kind of sham trial used against political opponents of the regime in the old Soviet Union”
When the Fox News host mischaracterized the jury instructions, one could argue that he’s not a lawyer and simply got confused. When Trump mischaracterized the jury instructions, it was even less surprising, given that the Republican lies uncontrollably, has no background in the law and has routinely struggled to understand the basics of trial procedures.
But Rubio is a lawyer. He went to law school. He practiced law before beginning a lengthy career as a lawmaker.
The GOP senator, in other words, doesn’t have an excuse for getting this wrong — and he most certainly flubbed the details in this instance.
I can appreciate the fact that the relevant nuances are complex. My MSNBC colleague Hayes Brown took a deep dive into the matter in his latest column, and I read it twice just to make sure I fully understood the underlying issue. A Washington Post analysis summarized the matter in a handy paragraph:
The 34 felony charges Trump faces allege that he falsified business records (or caused them to be falsified) to cover up another crime; specifically, conspiracy to influence an election by unlawful means. Merchan’s point wasn’t that unanimity wasn’t needed to convict Trump; it is. His point was that jurors didn’t need to agree on the unlawful means used in that conspiracy to determine that Trump attempted to cover up the conspiracy. Four of them could think the unlawful means was falsifying other documents or four might think it was violating federal election law. It didn’t matter.
In other words, to convict Trump jurors must be unanimous. But prosecutors presented a few different crimes related to the former president’s alleged unlawful means, and jurors can reach different conclusions about which of the laws he might’ve broken.
All of which brings us back to Rubio, who described the instructions in a nonsensical way, equated them with the USSR, and left his missive online even after it was discredited.
To be sure, everyone makes mistakes, but Rubio — who, again, really should’ve known better — pushed a wildly misleading claim that both undermines public confidence in the judicial system and seems likely to increase threats against the judge who did nothing wrong. [Update: Merchan has, in fact, faced increased threats as a result of false claims from the right about his jury instructions.]
No one should want to be vice president this badly.
