Manhattan Judge Juan Merchan "lined his bird cage" with the U.S. Constitution with his instructions to the jury about the need to be unanimous in their verdict against former President Donald Trump, Jonna Spilbor, an attorney and Trump surrogate, told Newsmax on Thursday.
"[He said] you need to find that Donald Trump committed an underlying crime that would elevate these 34 charges to felonies," Spilbor said on Newsmax's "Wake Up America." "Now, he also then told the jury, you don't have to be unanimous when you figure out what that crime is. Two of you can decide. It was campaign finance, two of you can decide it was some sort of state election law violation."
While instructing the jury, Merchan gave the three potential "unlawful means" they could apply to Trump's charges of falsifying business records through a plan to hide stories that would hurt his election campaign in 2016, according to The Associated Press.
Those specifications include determining if he had falsified other business records, violated the Federal Election Campaign Act, or submitted false information on a tax return. For a conviction, each juror is required to determine if at least one of those three things happened on each charge, but they do not have to agree unanimously on which violation occurred.
"None of those crimes, not campaign finance, state election law, tax evasion, came up for the first time ever," Spilbor said. "None of those were crimes that Donald Trump was charged with. None of those were crimes that any evidence was produced at trial for, and none of these crimes were in [District Attorney] Alvin Bragg's authority to even bring."
This means Merchan's jury instructions "gutted the burden of proof by giving the option to decide, not unanimously, which ones to bring," she added. "Judge Juan Merchan created his own rule, and that's what the jury has to sit with until they're done."
The jury instructions are asking that they consider what would ordinarily be federal offenses, which Bragg can't file, Spilbor continued.
"The fact that this is all coming out in closing argument and these jury instructions is astounding," she said. "Now, the good news is it's going to confuse the jury. And if they come back with guilty verdicts, the appellate division has to be already sharpening their pencils, because if they're paying attention, all of this is reversible error."
Meanwhile, the jury Wednesday asked Merchan for portions of testimony from former Trump lawyer Michael Cohen and former National Enquirer publisher David Pecker to be read back to them, and Spilbor said that may be because there are portions of Cohen's testimony they don't believe.
One of Merchan's instructions, said Spilbor, is to discount testimony from a witness they don't believe.
"We know that the jury got smacked in the face with the fact that Michael Cohen is the world's greatest liar," she said. "So what they might be doing is saying, all right, if we can't believe Michael Cohen, is there any other evidence of guilt that we can glean from some other portion of this trial?"
However, Spilbor said she hates the thought that there may be a hung jury in the case.
"We don't want to be here talking about this next week," she said. "We need a period at the end of this sentence. Donald Trump needs to get back on the campaign trail, which he will, guilty or not guilty."
The Associated Press contributed to this report.
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