There went Donald Trump’s last hope in this trial

| 9:09 am EDT May 22, 2024
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After defense witness Robert Costello spent his first day on the stand getting in trouble and unwittingly causing problems for Donald Trump, Costello’s second day on the stand ended up being something of a non-event. Instead the big story yesterday came in the form of the instructions that Judge Juan Merchan decided to give to the jury.

The judge decided that the jury will be told it can convict Trump for the underlying crime of falsifying business records if it concludes that he falsified them or caused them to be falsified. The judge also decided to tell jurors that in order to convict on felony charges, they each only had to agree that Trump falsified the records as part of some larger crime. It doesn’t matter whether each juror agrees on what the larger crime was, only that there was one.

This read to me like a slam dunk for the prosecution. And indeed, as I looked through the real time analysis being offered by legal experts on social media, there seemed to be consensus that this was indeed great news for the prosecution. Of course when I briefly turned on MSNBC last night just to see how they were covering the trial, the two legal experts on the panel both suggested that the jury instructions were somehow terrible for the prosecution. Leave it to MSBNC to ignore consensus and only book the specific people who were offering the scary opinion. Whatever.

But I’m still pretty well convinced that the judge’s jury instructions were the ballgame, and Trump has no remaining realistic hope of acquittal. Trump needed the judge to give the jury the kind of limiting instructions that would make it difficult for them to convict him, even if they’re convinced he’s guilty. That didn’t happen. Instead the judge has decided on fair instructions, and that makes it very easy for the jury to convict him. At this point Trump is down to hoping for a total fluke, which isn’t realistic.