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‘Lower Than Criminal Standard’: Turley Sounds Alarm About Key Jury Instruction Being Pushed By Alvin Bragg’s Team

Jonathan Turley

George Washington University law professor Jonathan Turley said he was concerned about jury instructions related to intent which could allow the 12 members to use a lower standard of proof to convict former President Donald Trump.

New York Judge Juan Merchan, attorneys with the office of Manhattan District Attorney Alvin Bragg and Trump’s lawyers met Tuesday to discuss what instructions would be given to the jury after former legal adviser to Michael Cohen, Bob Costello, finished his testimony. Turley expressed his concern to Fox News host Neil Cavuto, citing Merchan’s pattern of granting Bragg’s prosecutors leeway.

“The government is arguing some pretty sweeping positions,” Turley told Cavuto. “Among them, they are arguing ‘I don’t have to prove willful intent on all of the elements on all of these actions.’ They’re suggesting that things like unlawful means which is really an important term of influencing election can be satisfied by less than the criminal standard and the defense [is], I think, legitimately saying ‘Whoa, you know, you’re going to convict someone on a lower than criminal standard on an important element.’”

“And this is really the result of this sort of Frankenstein case, you know… Bragg took this dead misdemeanor and zapped that back to life as a felony by sort of stitching together different crimes,” Turley continued. “And now, the government is trying to use that to say, ‘Yeah, we did that, but it also means we don’t have to prove the full criminal standard on all elements.’”

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Bragg secured an indictment of Trump on 34 felony counts of falsifying business records in March 2023. Turley noted that Merchan’s treatment of Costello raised concerns that Merchan was displaying bias.

“He has made some good decisions, but they have largely gone in favor of the prosecution,” Turley told Cavuto earlier. “Some of the most important decisions he is taking on advisement, but some of the decisions he’s made today, quite frankly, are hard to figure out, you know, you – for example, with Costello the former attorney for Cohen and the prosecutors stopped Costello from fully answering a question on what he meant in an E-mail. And so when the defense got the chance, they said, ‘Would you like to explain”’ and the prosecution said ‘No, you know, it’s beyond the scope.’ That should have been a ridiculous objection and Merchan, however, sustained it. It was the same scope, he was being asked what did you mean by that, and the judge sustained.”

“So it’s moments like that where you really feel like there might be a thumb on the scale,” Turley continued. “The most important stuff going on right now is probably the least engaging for a passerby. It deals with how the jury will be instructed. That could very well determine the outcome in this case.”

Turley previously criticized Merchan for suggesting that former Trump Organization CFO Allen Weisselberg testify as prosecutors from the office of Manhattan District Attorney Alvin Bragg sought to introduce Weisselberg’s severance package into evidence. Merchan made a $15 donation to Biden’s election campaign in 2020 and two $10 donations, one to a group dedicated to “resisting” the “right-wing legacy” of then-President Donald Trump and another to a “Progressive Turnout Project,” according to Federal Election Commission (FEC) records.