Merchan and Bragg Fashion a Vague Fraud Instruction to Convict Trump

Former president Donald Trump waits for the start of proceedings in Manhattan criminal court in New York City, May 28, 2024. (Julia Nikhinson/Pool via Reuters)

The proposed jury instruction would encourage the jury to convict Trump in the absence of proof that he did anything illegal.

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The proposed jury instruction would encourage the jury to convict Trump in the absence of proof that he did anything illegal.

W ith summations about to commence this morning, we still don’t know what will be in the final legal instructions (the “jury charge”) that Judge Juan Merchan issues prior to deliberations. Nevertheless, on X/Twitter, the eagle-eyed Washington Post columnist Jason Willick notices something potentially critical in the parties’ debate over the jury charge. It deals with the central issue of fraud, and it is fleshed out in a “red-line” draft exercise Merchan directed, in which the parties sought to narrow disputes by providing the court with a draft that indicated what proposed instructions they agreed and disagreed on.

There, the following is offered to define the central concept of intent to defraud. Unless I am missing something, I don’t see any indication of an objection by the defense to this language:

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 — including the government or the voting public — suffices.

For this proposition, a footnote is dropped citing a 2007 decision by the state’s top court in People v. Dallas, which held that the statutory element of intent to defraud “does not require an intent to defraud any particular person: a general intent to defraud any person suffices.” That is all well and good; many fraud schemes try to hook people generally without targeting any specific person. But implicit in that is that fraud, as originally understood, is a deceptive scheme to deprive people of money or tangible property — concrete assets.

As I detailed a year ago when the Supreme Court threw out two federal political-corruption convictions of cronies of former New York governor Andrew Cuomo, a serious problem arises when politicians — generally, progressive politicians — attempt to stretch the concept of fraud in order to impose their vision of good governance. They do this by transmogrifying the concrete-property objective of fraudsters into a vague intangible interest in honesty. This can get so vague that, in essence, prosecutors begin indicting (pardon the tautology) deceptive schemes to be deceptive — i.e., cases in which no one was actually bilked out of anything concrete, or even targeted to be so bilked, but the fraud is said to be some artifice that produced a result the prosecutor doesn’t like, such as the “wrong” candidate winning an election.

Thus does the footnote supporting the proposed fraud instruction elaborate that “in the electoral context,” New York’s highest court has “recognized that the concept of fraud can encompass any deliberate deception (to be committed upon the electorate),” or any “corrupt act to prevent a free and open election.”

This is way too broad. There still has to be fraud — meaning the design to steal something in which people have a concrete interest. Otherwise, any untrue statement a candidate makes — for example, President Biden’s repeated claim that inflation was 9 percent when he took office (as he knows, it was 1.4 percent) — could be a prosecutable fraud (i.e., “a deliberate deception . . . committed on the electorate”).

If it is true that the Trump defense did not object to this proposed instruction, I’d find that mind-boggling. A jury so charged could reasonably find that Trump and his alleged accomplices (Michael Cohen and David Pecker) had an intent to defraud when they entered non-disclosure agreements with Playboy model Karen McDougal and porn star Stormy Daniels — especially the latter, since it is on the Stormy NDA that the 34 felony counts of fraudulent business-records falsification stem.

That would be absurd because NDAs are legal.

An intent to defraud cannot be derived from the performance of a legal act, even if that legal act has the effect of denying the electorate information. There is no property right vested in the “voting public” to have all conceivable information. At most, the “voting public” — whatever that vague formulation includes — is entitled to information that a political candidate must disclose by law. There is not a shred of evidence in the case that Trump was required by law to tell the voters he had (or is claimed to have had) extramarital affairs.

In construing the concept of fraud from its common-law origins, Justice Clarence Thomas explained in one of the aforementioned Cuomo crony cases, Ciminelli v. United States, that the Supreme Court has “consistently understood the ‘money or property’ requirement [in federal fraud statutes] to limit the ‘scheme or artifice to defraud’ element because the ‘common understanding’ of the words ‘to defraud’ when the statute was enacted referred ‘to wronging one in his property rights.’” It is simply not the purpose of fraud statutes to empower prosecutors, in the absence of clear — meaning non-vague — statutory direction, to impose their views on election integrity.

There can be no intent to defraud unless there is illegal conduct — i.e., a scheme to act in a manner that deprives people of a property right they actually have been given by a clear statutory provision. This is why Alvin Bragg, though he is a state prosecutor with no authority to enforce federal law, has tried to manufacture a federal campaign-finance felony against Trump: He knows he needs to show that the suppression of politically damaging information was somehow illegal because NDAs are not illegal per se — they are, in fact, common in legal settlements.

The proposed jury instruction would encourage the jury to convict Trump in the absence of proof that he did anything illegal, on Bragg’s vague theory that Trump duped the “voting public” by not publicly confessing to claims that he’d engaged in extramarital sex.

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