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Andrea Austria / Media Matters

How right-wing media distorted Judge Merchan's instructions to the jury in Trump's criminal case

Trump’s lawyer agreed that the instructions were ordinary just days earlier, and as one lawyer noted, "Someone can be convicted of murder even if the jurors disagree about the type of murder weapon”

Written by Alicia Sadowski, Isabella Corrao & Jane Lee

Published

As the jury began deliberations in the Trump hush money trial, right-wing media pushed the false claim that Judge Juan Merchan instructed members of the jury that they did not have to be unanimous in order to convict Trump, once again muddying reporting around the case with misinformation and falsely depicting Trump as the target of a weaponized, biased justice system.

Although some right-wing figures clarified that Merchan instructed the jury that they had to be unanimous only in deciding to convict or acquit Trump and not regarding the underlying crime, many conservative personalities suggested that Merchan’s instructions were “unconstitutional” or atypical. Several suggested that the jury instructions were an attempt to influence the verdict.

In fact, reporting indicates that Trump's lawyer agreed days earlier that the instructions were ordinary. As lawyer Duncan Levin noted, the instructions were “very standard.” He added that "someone can be convicted of murder even if the jurors disagree about the type of murder weapon.”

Here are some examples of right-wing personalities spreading misinformation regarding Merchan’s jury instructions, and explanations of why these claims are false.

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  • Merchan gave the jury instructions that were typical

    Merchan explained that, while the jury must be unanimous in order to convict Trump on each of the 34 charges in the case, they did not need to agree on the underlying crime, the “three different ways the law may have been broken.”

    PolitiFact wrote that claims that Merchan told jurors the verdict does not need to be unanimous were false:

    Duncan P. Levin, a Brooklyn, New York-based lawyer with Levin & Associates PLLC, called the social media spin on Marchan’s instructions “absurd.”

    “It has to be unanimous on the elements of the crime,” namely that Trump “caused business records to be filed (and) intended to conceal election by unlawful means,” Levin said. But it doesn’t have to be unanimous on the means, he said. 

    “That is not unusual at all. (It’s) very standard,” Levin said. “Someone can be convicted of murder even if the jurors disagree about the type of murder weapon.”

    In fact, just last week, Trump’s lawyer confirmed that non-unanimity of the jury regarding the “unlawful means” used to commit the crime was “ordinarily” the instruction.

    Georgia State University constitutional law professor Anthony Michael Kreis responded to Fox anchor John Roberts’ claim that “Merchan just told the jury that they do not need unanimity to convict,” saying, “Wrong. Unanimity to convict, but they may disagree about the underlying theory of criminality."

    The Associated Press: Claims circulating on social media “distort Merchan’s instructions.”:

    An X post reads: “Judge Merchan has told the jury that they do NOT NEED unanimity to convict. They do not have to all agree on what occurred. 4 can agree on one crime, 4 on a different one, and the other 4 on another. He will treat 4-4-4 as a UNANIMOUS verdict.”

    But these claims distort Merchan’s instructions.

    The judge told the jury that to convict Trump on any given charge, they will have to find unanimously — that is, all 12 jurors must agree — that the former president created a fraudulent entry in his company’s records or caused someone else to do so, and that he did so with the intent of committing or concealing a crime.

    Prosecutors say the crime Trump committed or hid is a violation of a New York election law making it illegal for two or more conspirators “to promote or prevent the election of any person to a public office by unlawful means.”

    Merchan gave the jurors three possible “unlawful means" they can apply to Trump’s charges: falsifying other business records, breaking the Federal Election Campaign Act or submitting false information on a tax return.

    For a conviction, each juror would have to find that at least one of those three things happened, but they don’t have to agree unanimously on which it was.

    Trump is charged with 34 felony counts of falsifying business records in the first degree as part of a scheme to bury damaging stories that he feared could hurt his 2016 campaign, particularly as his reputation was suffering at the time from comments he had made about women.

  • Right-wing media fearmongered about the instructions, calling them “unusual” and making sweeping claims about the case against Trump and Merchan in particular

    • Fox host Jesse Watters suggested that Judge Merchan’s instructions give the jury a “crime buffet” and a “build-your-own conviction.” Watters continued the metaphor: “All they have to do is agree on that their meal was delicious, even though they didn’t even taste everyone else's food. Fill your plate with misdemeanors, whatever you want, and we will call it a felony.” [Fox News, Jesse Watters Primetime, 5/29/24]

    • Fox anchor John Roberts posted, “Judge Merchan just told the jury that they do not need unanimity to convict. 4 could agree on one crime, 4 on a different one, and the other 4 on another. He said he would treat 4-4-4 as a unanimous verdict.”  [Twitter/X, 5/29/24]

    • Fox News guest Andrew Cherkasky cited Merchan’s “extremely unusual” jury instructions as an example by which Todd Blanche, Trump’s attorney, has “constantly been set back by Judge Merchan.” Cherkasky continued, “It is not something that is, I think, well-regarded in most courts, and appellate courts are going to be very skeptical of it.” [Fox News, America’s Newsroom, 5/29/24]

    • On Fox News, Mercedes Colwin said that Merchan’s instructions constitute a “paradigm shift” within the case and are “generally not done.” She claimed, “Unanimity means unanimity, meaning that you have found him to have been guilty on all these counts especially when you’re talking about the underlying crime itself. There has to be unanimity in that as well.”  [Fox News, America’s Newsroom, 5/29/24]

    • Fox News guest and former deputy assistant attorney general Tom Dupree called Merchan’s instructions “very disturbing.” Dupree said that “the idea you can have someone convicted of a felony without the unanimous consent of all jurors” would be “a problem and could be a winning appellate issue for Trump if he is convicted.” [Fox News, America’s Newsroom, 5/29/24]

    • Fox guest and former Trump attorney Jim Trusty called Merchan’s instructions “very government-friendly, very generous, and problematic in the long run.” He agreed with Roberts that the instructions are a “finger on the scale” to increase the probability of a conviction. [Fox News, America Reports, 5/29/24]

    • Turley called Merchan’s instructions “deadly for the president.” He said, “The most worrisome is that the judge said they don't have to agree on what happened.” [Fox News, America Reports, 5/29/24]

    • The Five co-host Jeanine Pirro claimed that Merchan was running a “kangaroo court.” She said, “You've never heard of anything other than a unanimous verdict in a criminal trial.” [Fox News, The Five, 5/29/24]

    • Fox News legal contributor Jonathan Turley said Merchan’s instructions turned the deliberations into a “canned hunt.” Turley concluded, “That is pretty chilling for people that believe strongly in the criminal justice system and the very high standard of proof that’s required.” [Fox News, Hannity, 5/29/24] 

    • Sean Hannity claimed that the jury instructions prove “Judge Merchan is clearly trying to help the prosecution get this across the finish line, despite no evidence of any crime.” [Fox News, Hannity, 5/29/24]

    • Former White House senior policy adviser Stephen Miller claimed the instructions amounted to “THIRD WORLD MARXIST LAWFARE.” [Twitter/X, 5/29/24]

    • Newsmax’s Greta van Susteren claimed Merchan’s instructions were “wrong.” She posted, “This is wrong-jury must be unanimous on every element (it can’t be 4 believe one predicate and 8 believe another); judge is wrong.” [Twitter/X, 5/29/24]

    • Failed RNC chair candidate Harmeet Dhillon posted, “This is some epic BS. Literally violates everything lawyers are taught in school and know from actual experience.” [Twitter/X, 5/29/24]

  • Right-wing media claimed that Merchan’s instructions were “unconstitutional”

    • Fox News contributor and former assistant U.S. attorney Andy McCarthy called Merchan’s jury instructions a “constitutional outrage.” He then claimed it “would be outrageous” if the jury disagreed on “essential” elements of the case. [Fox News, America’s Newsroom, 5/29/24]

    • Later in the program, McCarthy claimed that he could not bring the instructions “into the line with the United States’ Constitution” and called the trial a “make-it-up-as-you-go-along New York state prosecution of federal law.” He concluded, “I actually think that’s pretty outrageous, but in this case I'm not sure it makes the top 10 of outrageous.” [Fox News, America’s Newsroom, 5/29/24]

    • Fox host Trey Gowdy claimed he does not know how to “square” the instructions with the Constitution. Gowdy suggested that there should be an additional form for jurors to “at least tell us which crime you picked” and called a potential verdict “void for vagueness.” [Fox News, America Reports, 5/29/24]

    • Fox host Laura Ingraham called Merchan’s instructions a “trick” and “umbrella charging” to violate Trump’s constitutional rights. “This is precisely what is happening here in Merchan’s instructions,” Ingraham stated. She continued, saying the case was “a violation of the due process clause of the Constitution which also of course undermines Trump’s right to unanimous jury verdict in a state criminal case." [Fox News, The Ingraham Angle, 5/29/24]

    • Host Sean Hannity claimed that Merchan’s “jury instructions were not only unconstitutional but rather insane.” Hannity continued, “Apparently Judge Merchan believes he's above the law and was perfectly willing to trample on our Constitution at will.” [Fox News, Hannity, 5/29/24]

    • Rudy Giuliani tweeted, “IMPORTANT: Judge Juan Merchan is violating the constitution—both in the U.S. and state constitution. The Constitution requires unanimous jury verdicts in state criminal trials. It's fully incorporated against the states.” [Twitter/X, 5/29/24]