Megyn Breaks Down Why Poor Jury Instructions May End Up Sinking Donald Trump in His NY Criminal Trial

Jeenah Moon/Pool Photo via AP

Court is back in session in Donald Trump’s New York criminal trial, and we are starting to get a good look at what appears to be the defense team’s strategy.

Keith Davidson Cross Examination

Today, Trump lawyer Emil Bove has been out there cross examining Keith Davidson, the attorney who once represented Karen McDougal and Stormy Daniels. Both women have alleged to have affairs with Trump, and both women have tried to get money from him as not to disclose it. Davidson worked with Stormy right before she hired Michael Avenatti.

Bove is making Davidson look like an absolute scumbag. On direct, Davidson talked about how he dealt with former Trump fixer Michael Cohen. He said they struck a deal when he wanted $150,000 for Karen McDougal so she wouldn’t go public with her story, and The National Enquirer paid it.

Now, it is cross examination time and Bove is clearly trying to create distance between the former president and the deals brokered between Cohen and Davidson. He established Davidson has never met Trump, and the defense is, in part, that Trump didn’t know what Cohen was doing. 

Bove is also trying to paint Davidson as a serial extorter, asking for money in various situations while being mindful not to cross the line into actual extortion. The defense has dug up unsavory episodes from Davidson’s past to cast him as shady, and he has resorted multiple times now to saying “I don’t recall.”

The New York Times is reporting the defense team seems headed toward the suggestion that the money paid to Stormy may not have been paid to cover up an affair but rather because Trump was being shaken down. They are trying to paint it like this is all Davidson does – he sees a celebrity with a deep pocket and he finds a way to extort them for money so that either an actual affair or the allegations of one don’t hit the front page of any given tabloid. 

This sounds like a very effective way of destroying this guy’s credibility.

Trump’s Chances of Acquittal

So, what does this mean for Trump? If this were a fair jury actually interested in the evidence and properly instructed on the law, Trump would easily be acquitted. But I do think that is the case.

I said this the other day, but the same way Marcia Clark lost the O.J. Simpson trial once she didn’t move the venue and got the jury she got, this trial has already been lost by the fact that it is being tried in Manhattan and they’ve got the jury they do. 

Maybe there is somebody out there who will hold out. That could happen. But the overwhelming odds are it won’t. The jurors all seem to (1) have the proper New York City liberal elite credentials, (2) can’t stand Donald Trump, and (3) can’t wait to find him guilty. 

Even if they are fair, they are going to be given legal instructions when they get to the jury room that are so awful and not consistent with the actual state of the law. They are horses that are being led right to the water – and they will drink. It is wrong.

It is a long story, but the short of it is the jury instructions should say:

If you find that the type of money paid to Stormy Daniels is the type of money that would only ever be used to advance somebody’s electoral chances, then you may proceed to finding whether Trump actually paid that money. 

That is what they should read. And it is then for them to say: Do we think that hush money is only ever paid to advance an election? Oh, wait. No, men have been paying that since the dawn of time.

Okay, so now what should we do, judge? In the next line it should say, then acquit because there is no underlying crime that would revive the dead misdemeanor of falsifying business records. 

But what the jury instructions are actually going to say is:

Do you think Trump conspired to try to win the election with Stormy Daniels or her representatives? 

And the only way they are going to say no to that is if they really believe Trump and Michael Cohen didn’t talk at all. I don’t think they are going to reach that conclusion. 

So, I think Donald Trump is losing. He should not be, but he is. And I stand by my original prediction that he is going down. He is going to be convicted in this case. I do not think, however, there is any way he is getting jail time. There is something seriously wrong with the judge if he tries to put Trump in jail.

You can check out Megyn’s analysis by tuning in to episode 782 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.