Supreme Court May Have Given Trump NY Trial 'Greatest Indictment'—Attorney

Legal analyst and attorney Jonathan Turley wrote on Saturday that "the greatest indictment" in Donald Trump's criminal hush money trial "may have come from the Supreme Court" after two rulings this week were in favor of the defendants.

On Saturday, Turley, a frequent Fox News commentator and professor at George Washington University Law School, authored an opinion piece titled, "At the Supreme Court, two cases lay bare New York's legal wasteland," published in The Hill. The piece comes nearly a month after a Manhattan jury convicted Trump and days after the Supreme Court ruled on the cases Gonzalez v. Trevino and Erlinger v. United States.

Late last month, a New York jury found Trump, the presumptive Republican 2024 presidential nominee, guilty on 34 counts of falsifying business records relating to a hush money payment made to adult film star Stormy Daniels before the 2016 presidential election. Daniels alleged she had a sexual encounter with Trump in 2006, which he denies. Trump has maintained his innocence and says the case is politically motivated. His legal team says it will fight the case, which will include an appeal, if necessary.

The verdict makes Trump the first former president convicted of felony crimes. He now faces possible jail time, which will be determined at his July 11 sentencing by Judge Juan Merchan, just days before the Republican National Convention where he's expected to accept the party's nomination.

In his opinion piece, Turley described what he believes is a siloed "legal wasteland" in New York, writing, "With the Trump trial, Manhattan has become a type of legal wilderness where prosecutors use the legal system to hunt down political rivals and thrill their own supporters."

In an email to Newsweek on Sunday morning, Turley said in response to Trump's trial, "My greatest objection was the [jury] instruction allowing for a nonunanimous decision on the secondary crime that was critical in reviving the dead misdemeanor office on the falsification of business records."

In his opinion piece, Turley turned to Washington, D.C., for comparison and wrote, "The Supreme Court, with a strong conservative majority, defended the rights of defendants and upheld core principles that are being systematically gutted in New York."

In an X, formerly Twitter, post discussing his article, Turley wrote Saturday about the Manhattan trial, "Yet, the greatest indictment may have come from the Supreme Court."

Gonzalez v. Trevino

Turley looked at the highest Court's Thursday ruling on Gonzalez v. Trevino, in which Sylvia Gonzalez, a former Castle Hills, Texas, city council member, claims her 2019 arrest on charges that she tampered with government records was in retaliation for her criticism of the city manager. The Court's ruling grants Gonzalez another opportunity to pursue her retaliation claim in a lower court, stating that the lower court had an "overly cramped view" of a key precedent case.

"Unlike the Trump case, the criminal charges against Gonzales were thrown out before trial. For Trump, selective prosecution claims were summarily dismissed, even though no case like Bragg's appears to have ever been brought before," Turley wrote in his opinion article.

Selective prosecution means prosecuting only one defendant when there are others who are similarly situated, but are not facing prosecution.

Erlinger v. United States

Citing a second Supreme Court case in his Saturday opinion article, Erlinger v. United States, the Court ruled on Friday that "the Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant's past offenses were committed on separate occasions." The case dealt with unlawful possession of a firearm as a felon with prior burglaries.

"The court ruled that a jury had to decide this issue unanimously under a standard of beyond reasonable doubt. This is in contrast to how the Trump case was handled, in which jurors could disagree on key aspects of the crime yet still convict the defendant," Turley wrote, referring to Merchan's jury instructions that informed the jury they needed to unanimously find Trump guilty of each of the 34 felony counts, but did not need to be unanimous on the specific ways the law was allegedly broken.

"They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved," Turley added.

Turley concluded his opinion article and wrote, "Gonzales and Erlinger demonstrate the high level of protections that we normally afford criminal defendants. A court with a 6-3 conservative majority just ruled for the rights of all defendants in defense of the rule of law."

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Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan and MSNBC legal analyst, told Newsweek in an email on Sunday afternoon, "These cases seem like apples and oranges."

Regarding the Erlinger case, she said, "The Court held that when a statute provides for more serious punishment based on a prior crime of violence, a jury and not a judge should make that finding because a jury must find unanimously each and every element of an offense."

McQuade added that "the Trump case is consistent with this principle" given that the "jury found unanimously both the primary crime—that Trump falsified business records—and the secondary crime—that he did so with intent to conceal commission of [New York Statute] 17-152."

"Where the court permitted a non-unanimous finding was the precise way in which the means were unlawful under 17-152. This ruling is consistent with the law that requires that juries find elements unanimously but need not be unanimous in findings of manners and means," McQuade explained.

"Similarly, the Gonazales case is not dispositive here," McQuade said. In response to the issue of selective prosecution, she said it was "litigated before trial and rejected by Justice Merchan. To make out a defense of selective prosecution, a defendant must show that he was singled out for race, religion, or some other arbitrary classification and that other similarly situated defendants were not prosecuted for the same offense. Trump was unable to do so."

With regards to the unprecedented nature of this specific high-profile case, McQuade said, "It is true that no case precisely like this one has been brought before, but that is likely because no one has been caught committing this precise crime before. Moreover, according to Norm Eisen, in his book, Trying Trump, Chapter 8, the charge of falsifying business records has been brought by the Manhattan DA 755 times since 2020, with three involving campaign finance violations."

Meanwhile, Cheryl Bader, an associate clinical professor of law at Fordham University, countered Turley's claims regarding Merchan's jury instructions.

She told Newsweek in an email on Sunday, "He [Merchan] did not give them a choice of the underlying crime. Section 17-152 of the New York Election Law prohibits conspiring to promote or prevent the election of any person to a public office by 'unlawful means.'"

Bader noted that "under New York law, a jury must be unanimous on the existence each element of the crime but not on every detail on how the crime was committed," in reference to Merchan's instructions not requiring unanimous reasoning. As an example, she wrote, "For a conspiracy charge, the jury must be unanimous that the conspirators committee an 'overt act to further the conspiracy' but they can disagree on whether that act was securing a getaway car or making an explosive device."

Unlike Erliniger, "Trumps case is not a case about a sentencing enhancement but about the level of crime Trump committed," she added.

With regards to the future of Trump's potential appeal of the verdict, Turley told Newsweek on Sunday, "While I expect former President Trump will have initial difficulty in the New York system, I still believe that the verdict should and will eventually be set aside."

Update 6/23/24, 3:09 p.m. ET: This article was updated to include comment from McQuade and Bader.