The jury in former president Donald Trump’s New York hush money trial is deliberating on whether to convict him. But there are some major issues: For one, the judge didn’t give the jury a printed copy of the jury instructions — something Missouri Attorney General Andrew Bailey says he has “never” seen before. Plus, the jury doesn’t even have to agree on WHAT crime Trump committed. Attorney General Bailey joins Glenn to explain why this is dangerous: This isn’t the American justice system. The judge has created a “roving commission” more akin to the system the British used to jail dissenters in the colonial era.
Transcript
Below is a rush transcript that may contain errors
GLENN: The judge in President Trump's hush money trial, told the jury, that they don't even have to agree on the crime. They could all think, you know, I think his hair is a crime.
You know, four of them. I think his suntan is a crime. And four of them can say, I think, you know, he falsified checks. Whatever.
Whatever they think the crime is! Because it wasn't really defined.
Even if they don't agree on the crime, if 12 of them thinks he committed some crime, well, then he's guilty. I've never heard that before.
I've served on a jury. I've served on a jury with multiple counts.
We had to discuss each count!
And we found this person guilty on some counts. And not on others.
It would have been the easiest thing ever. We could have been done in ten minutes! If all we had to do was just, hey. These seven counts on this guy. Does everybody agree, he did one of them?
Yeah. Okay. We're out of here.
Is this normal? Andrew Bailey is here. He's the Missouri attorney general. Kind of knows the law.
Attorney General Bailey, welcome to the program.
ANDREW: Thanks for having me on.
GLENN: So, again, I don't know the law. But this does not seem like the American way of I couldn't wait if had our courts. Am I wrong?
ANDREW: No. You are absolutely right. This reeks of desperation by the prosecutor and the judge to obtain a conviction. If people were not previously convince that had this was an elicit witch hunt prosecution. They should be so now.
This is insane. Look, since 2020, the United States Supreme Court has said that jury unanimity under criminal law is required under the Sixth Amendment of the United States Constitution. It was not always that way. There were two states prior to 2020, that did not require jury unanimity under the Sixth Amendment criminal trials. Louisiana and Oregon for lesser offenses.
And the Supreme Court fixed that in 2020. And so for this prosecutor and this judge to say, hey, whatever you think. Go ahead and do whatever you want. It violates the Sixth Amendment. It violates the president's due process rights. Because how many folks know how to offer a defense, if he doesn't even know what the -- the target crime is.
That he's -- that is an element of the office for which he's charged. It also empowers the jury to be a roving commission.
And, again, that reeks of desperation. They don't care. They will throw everything against the wall.
This is not giving the jury instructions, and convict them of something, whatever you want.
GLENN: Well, there is -- 32 charges. Thirty-two counts. Thirty-four counts. So if two of them believe, you know, he's guilty on 29, and two of them believe something else.
But they don't agree on the same counts. How is that justice?
ANDREW: No. I think that's absolutely right. And, again, it creates a roving commission. And that violates the basic constitutional tenants that underpin the due process clause of the Sixth Amendment rights to a jury trial. That's been incorporated against the state, and certainly at least since 2020.
And again, I think it's desperate. It's throw everything against the wall. It also reminds me of, there was a Roman emperor who used to nail the walls to the highest points on the columns. So the Roman citizens wouldn't be able to read them. That's a lot what this is like. The judge is saying to the jury, I will charge you to find a crime. Any crime you want. And I'm not going to let you read the jury instructions.
Trust me. You guys go back and convict him on something they want to convict them on.
GLENN: Okay. So tell me what the jury instructions mean. And why would he not print. Because I understand also, that it is clearly printed all the time. So --
ANDREW: That's right. I would never try a case, where you didn't give the jury, the jury instructions. Why would you not want to. Again, that's the law. Judges determine law. Juries determine facts. And it's up to the jury, to apply the facts to the law.
And so in closing arguments, the prosecutor gets up and says, here's the elements of the offense. Here's the evidence that proves each of these elements. And it's like a checklist. Then you tick down it. Then you show them the verdict form.
And say, this is how you find them guilty.
And if you're the defense, you stand up and say, the state didn't prove this! They didn't prove beyond a reasonable doubt of that. And it etches in the jury's mind, what to look for, in that instruction packet, when they go back in delivery. But how is the jury supposed to look back to the law, if they can't see the law in front?
GLENN: Also, may I ask, when -- when the -- oh, shoot.
He did something. Oh, in the closing arguments, for the prosecution. Didn't they introduce new evidence or evidence that wasn't presented, and he let it ride?
ANDREW: Completely objectionable. It should have been stricken from the record. And the jury should have been admonished to ignore that. It's called facts not in evidence.
It's one of the first objections you learn in any evidence class in law school, and to have the prosecutor for the state of New York. Matthew Colangelo, Alvin Bragg. Having that team stand up and testify, as if they're witnesses. The fact that it has not been introduced. It's completely impermissible. It demonstrates an abuse of the judge's discretion. It should have been stricken from the record.
But, again, I will go back to this idea of a roving commission. The -- think about our experience under colonial England.
Where general warrants were issued by magistrates, and the British soldiers could search your home and quarter in your home for no basis whatsoever, just on any -- any level of suspicion.
And you didn't even have to be charged with an actual offense. That you would then be able to defend against.
They, allegations were sufficient to jail you. And so the Founders erected these Constitutional barriers, that kind of government intrusion into our individual liberties.
And again, the Sixth Amendment requires your anonymity which has been violated here. It also prevents the due process clause. It prevents a roving commission, where the law is so abstract. That the jury can roam freely through the evidence. And choose any fact it wants to create liability.
That is not -- again, that is not what this country is founded upon, that violates the Constitutional rights. And it's to demonstrate. This was never about a legally valid conviction. There's never about an actual crime.
There was never a crime. It's always about taking President Trump off the campaign trail, and that has been violating all of our rights.
GLENN: Okay. So -- so, Andrew, I'm -- I'm thinking about why this guy would do this. Because I would imagine with be this is a slam dunk, overturn.
Wouldn't it be?
ANDREW: Yeah. Absolutely. Absolutely.
It should have been dismissed at the state's evidence for failure to actually prosecute a criminal defense. Failure to offer, prove beyond a reasonable doubt on some of the elements. It then should have been dismissed once again, disclosed of all the evidence. This shouldn't have even gone to the jury.
And the fact that they have now rigged the jury process, to avoid the anonymity requirement, and to create this roving commission.
It's just once again, just one more piece of evidence to prove, the witch hunt nature of this prosecution.
GLENN: So do you believe this was done possibly. Excuse me.
Do you believe this was done possibly, because they just want the none name after. And then just dispute. Well, it was some conservative court that overturned it.
You know, we know the truth. And that's the only reason I can think of -- why you would do this. Why would a judge want to be overturned, especially when it is so clearly going to be overturned.
ANDREW: Glenn, I think you're absolutely right.
I think two other points to make here. The process and the timing.
This is a crucial period. Where President Trump needs to be courting the electorate and republic. Instead, he's tied down in a Manhattan courtroom.
But secondly, think about how long an appeal takes. That doesn't happen overnight. To the extent he's convicted, to the extent they obtain an illegal illicit conviction this week or next, sentencing will be pushed out 45 to 60 days at most. And then an appeal will take a year or more.
And so this takes us in. Even if President Trump is elected president, this will haunt him and this will undermine the first few years of his administration.
GLENN: This is just nuts.
ANDREW: They poisoned the well we will be drinking from for years now.
GLENN: I mean, you want to talk about the end of the republic. It's this kind of stuff that ends the republic. You don't. And because it's not just about him.
This goes back to what Stalin created. What the king. King George created.
Find me the man, I'll find you the crime.
You know, it -- it -- there is no justice, if things like this happen. One last question: I served on a jury once. And it was a serious case. But not a -- not a murder or anything else.
But it was -- it was, you know, abuse of a wife.
And we had, I don't know how many charges. And we kept calling the judge in. Because we thought the judge was, you know, our friend. And fair.
And we would ask him. And he would say, I can't tell you that. I can't tell you that.
Here are the instructions. You would have to go. And we would call him back in.
I can't tell you that. Here are the instructions. And we couldn't agree on all of the counts. And so we ended up, I think on maybe two counts out of eight. Or something like that.
Because we were split.
If we would have been able to say. Oh, you four want this. And you four think that case.
And that four think this. We would have been out of there by now.
Does it say anything, that they have such a wide berth to agree on anything?
And it -- it takes them a while to get through this. I mean, I would have been done. We would honestly, if we had those instructions, we would have been done the first day.
ANDREW: Yeah. That's right. I mean, that's why jury anonymity is so important to our constitutional structure, to our individual rights.
You know, and also the due process clause. To prevent that kind of roving commission. The prosecution here is best summed up as, there is no crime. So let's see how much garbage we can throw on a wall. See if any of it sticks. And try to convince someone that it's criminal behavior. And the judge is going to collude with us. Not allow the jury to see the law. And then agree that, yeah, you are a roving commission. Anything that you want to find that is criminal, it's a grab bag. You pick it. You choose it. You don't have to agree. Let's get out of here with the conviction as fast as we can.
It undermines the credibility of our criminal justice system. I also think it's dripping with irony, that this is happening in a state like New York, where they're not prosecuting actual criminals. This is a state the prides itself on criminal justice reform and bail for everyone. Cashless bail for everyone. And one standard of justice, as Alvin Bragg launched on his website.
How can he even look himself in the mirror and keep a straight face with that kind of nonsense going on.
GLENN: I know I promised one last question. But, again, one last question.
The jury just sent the judge a note. They want to reread the instructions, beginning with how they should consider facts and what inferences can be drawn. What have what do you take from that?
ANDREW: I think it's problematic. It means that they know they don't have direct evidence to prove some of the elements of the event. But remember, there are two attorneys on that jury. And those attorneys are telling them, look, we don't need direct evidence.
Circumstantial evidence which includes reasonable inferences is sufficient to obtain a conviction stop it means they're stretching.
And I think it's a reasonable inference for us and outsiders to draw.
If those attorneys are inviting them to stretch and use circumstantial evidence to try to find any crime.
GLENN: Jeez. Thank you so much.
Andrew, I appreciate it. Andrew Bailey. The Missouri attorney general. I -- I really appreciate it.
Thank you.
ANDREW: Appreciate you having me on. Thank you.
GLENN: You bet.
