Former President Donald Trump has uttered multiple false or misleading claims about his Manhattan criminal trial this week as the trial has neared a conclusion. Here is a fact check of some of the statements Trump has made on social media and to reporters from Tuesday to Thursday morning.
Merchan and the ‘advice of counsel’
After closing arguments Tuesday, Trump posted on social media to repeat his misleading complaint that Judge Juan Merchan has prevented him from employing a certain defense.
Trump wrote on his platform Truth Social: “THE GREATEST CASE I’VE EVER SEEN FOR RELIANCE ON COUNSEL, AND JUDGE MERCHAN WILL NOT, FOR WHATEVER REASON, LET ME USE THAT AS A DEFENSE IN THIS RIGGED TRIAL. ANOTHER TERM, ADVICE OF COUNSEL DEFENSE!” He added in another post on Wednesday morning: “RELIANCE ON COUNSEL (ADVISE OF COUNSEL) NOT ALLOWED BY MERCHAN, A FIRST.”
Facts First: Trump’s claim remains misleading. He didn’t mention, again, that the reason Merchan will not allow Trump’s legal team to invoke “advice of counsel” during the trial is that, when Trump was asked before the trial whether he would be using an “advice of counsel” defense, his lawyers told Merchan he would not.
An “advice of counsel” defense typically requires the defendant to waive attorney-client privilege. Trump’s lawyers told Merchan before the trial that instead of a “formal” defense of “advice of counsel,” Trump wanted to use a different defense in which he would not waive attorney-client privilege but would still “elicit evidence concerning the presence, involvement and advice of lawyers in relevant events giving rise to the charges in the Indictment.”
Merchan rejected this proposal. He wrote in March: “To allow said defense in this matter would effectively permit Defendant to invoke the very defense he has declared he will not rely upon, without the concomitant obligations that come with it. The result would undoubtedly be to confuse and mislead the jury. This Court can not endorse such a tactic.” Therefore, Merchan ruled, Trump could not invoke or even suggest a “presence of counsel” defense in the trial.
Last week, during courtroom discussions about Merchan’s instructions to the jury, Merchan rejected an attempt by Trump’s defense to invoke the “involvement of counsel.” Merchan noted he had already made his stance on the proposal clear.
Merchan said: “This is an argument that you’ve been advancing for many, many, many, months. This is something you’ve been trying to get through to the jury for many, many, many months. It’s denied, it’s not going to happen, please don’t raise it again.”
Merchan and jury unanimity
Trump claimed Wednesday that Merchan “is not requiring a unanimous decision on the fake charges against me.”
Trump made the claim in a social media post in which he described Merchan’s supposed position as “RIDICULOUS, UNCONSTITUTIONAL, AND UNAMERICAN.” He was echoing assertions that had been circulating among conservatives after Fox News anchor John Roberts wrote on social media earlier on Wednesday that “Judge Merchan just told the jury that they do not need unanimity to convict.”
Facts First: Trump’s claim inaccurately depicts what Merchan said.
Merchan told the jury in his instructions on Wednesday that their verdict “must be unanimous” on each of the 34 counts that Trump faces and that, to convict Trump of felony falsification of business records, they have to unanimously agree that he falsified business records with the intent to commit, aid or conceal another crime – that other crime being a violation of a New York election law. But Merchan explained that while this New York election law prohibits people from conspiring to use “unlawful means” to promote a candidate’s election, jurors don’t have to unanimously agree on which particular “unlawful means” Trump may have used; they can find him guilty as long as they unanimously agree that Trump used some unlawful means. Prosecutors provided three theories of what unlawful means Trump used.
Merchan told the jury: “Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were. In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: one, violations of the Federal Election Campaign Act otherwise known as FECA; two, the falsification of other business records; or three, violation of tax laws.”
Lee Kovarsky, a University of Texas law professor who has been following the trial, put it this way on social media on Wednesday: “If a law says NO VEHICLES IN THE PARK & list of vehicles includes mopeds and motorcycles, all the instruction means is that you need unanimous conclusion of vehicle but not unanimous on whether vehicle was moped or harley.”
– CNN’s Jeremy Herb contributed to this item.
The charges against Trump
After Merchan recited his instructions to the jury on Wednesday, Trump wrote on social media: “I DON’T EVEN KNOW WHAT THE CHARGES ARE IN THIS RIGGED CASE—I AM ENTITLED TO SPECIFICITY JUST LIKE ANYONE ELSE.
THERE IS NO CRIME!”
Facts First: This needs context. Less than two hours before Trump made this post claiming he doesn’t even know what the charges are, Merchan had explained each of the 34 charges during his jury instructions in the courtroom – with Trump present.
We can’t definitively fact-check what Trump actually knows about the charges, and even some legal analysts have said this case can be a difficult one to understand. But there is no basis for any suggestion that the charges have not been specified.
Merchan had told the jury, “I will now instruct you on the law applicable to the charged offenses. That offense is Falsifying Business Records in the First Degree – 34 Counts.” He then explained how the crime of first-degree falsifying business records is defined in New York law, further explained the definitions of particular words in that law, and then, one by one, identified each of the 34 business records that make up the 34 counts.
The 34 counts were also specified in Trump’s indictment in the case more than a year ago.
The judge and a possible witness
Trump claimed to reporters on Wednesday that Merchan had refused to allow Trump’s defense to call a leading election-law expert to testify.
“This judge didn’t even let us use the number-one election attorney,” Trump said. He continued moments later, “We had the leading election expert in the country, Brad Smith, ready to testify. Wouldn’t let him do it.”
Facts First: Trump’s claim is false. Merchan did not prohibit this potential witness, former Federal Election Commission chairman Bradley Smith, from testifying. Rather, Merchan limited what Smith was allowed to testify about. He decided in March that Smith could provide background information about the FEC and define certain terms relevant to this case but could not opine on whether Trump broke federal election laws or offer opinions about how to interpret or apply those laws. After Merchan refused last week to change his mind, Trump’s defense decided not to call Smith as a witness.
Smith wrote on social media last week: “Judge Merchan has so restricted my testimony that defense has decided not to call me.”
Trump could argue that Merchan’s decision to restrict Smith’s testimony rendered Smith useless as a witness. But his assertion that Merchan flat-out banned Smith from testifying is not true.
Biden and the case
After the jury began deliberations on Wednesday, Trump spoke repeated his frequent claim that this case was “all done by Joe Biden.” And on Thursday morning, he claimed that Manhattan District Attorney Alvin Bragg had revived the case during Trump’s campaign “at the request of Biden.”
Facts First: There is no basis for Trump’s claim. There is no evidence that Biden had any role in launching or running Bragg’s prosecution – and Bragg is a locally elected official who does not report to the federal government. The indictment in the case was approved by a grand jury of ordinary citizens.
Trump has repeatedly invoked a lawyer on Bragg’s team, Matthew Colangelo, while making such claims; Colangelo left the Justice Department in 2022 to join the district attorney’s office as senior counsel to Bragg.
But there is no evidence that Biden had anything to do with Colangelo’s employment decision. Colangelo and Bragg had been colleagues before Bragg was elected Manhattan district attorney in 2021.
Before Colangelo worked at the Justice Department, he and Bragg worked at the same time in the office of New York’s state attorney general, where Colangelo investigated Trump’s charity and Trump’s financial practices and was involved in bringing various lawsuits against the Trump administration.
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