Before Judge Juan Merchan sends a Manhattan jury off to decide whether Donald Trump is guilty in his hush money trial, the former president's legal team will have to make a decision in a filing that could risk a guilty verdict but that drastically lowers the penalties after conviction.
In a column for the Wall Street Journal, former New York state judge Ethan Greenberg claimed Trump's lawyers could ask the jury to alternatively consider misdemeanor charges against their client instead of the 34 felonies he is now facing, which could spare him from a harsher sentence.
As it stands now, the jury that is currently hearing evidence from prosecutors that Donald Trump insiders manipulated business documents to hide hush money payments to adult film star Stormy Daniels before the 2016 presidential election would be limited to only consider the felony charges.
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However, as Greenberg wrote, Trump's lawyers could "gamble" by requesting the judge instruct the jury to "consider 34 misdemeanor counts of falsifying business records in the second degree" in what is known as a "lesser included offense," or LIO.
As the former judge notes, not doing so risks the former president's freedom with the very real scenario that a felony conviction could be forthcoming.
As he wrote for the Journal, "In Mr. Trump’s trial, the misdemeanor charges require proof that he deliberately falsified business records, while the felony charges in addition require that he did so with the intent to conceal another crime. The trial judge must submit the LIO to the jury if either prosecution or defense requests it. If neither asks for it, the judge may do so at his discretion."
For Trump's legal team it could prove to be a pivotal decision.
"It’s entirely conceivable that the jury could conclude that Mr. Trump deliberately falsified business records but did so merely to avoid public embarrassment and marital trouble, rather than to cover up another crime," Greenberg explained. "This presents an especially difficult decision for the Trump team—hedge with a misdemeanor or go for broke? If Judge Merchan instructs the jury to consider only the felony charges and it concludes that Mr. Trump falsified business records but lacked the intent to cover up another crime then the former president will be acquitted. If Mr. Trump’s lawyers submit the lesser offenses and the jury concludes the same thing, he would be convicted on the misdemeanor counts."
Calling the LIO a "hedge," Greenberg added, "With each of the 34 felony counts carrying a sentence of up to four years, Mr. Trump theoretically could get what amounts to a life sentence," before adding, "Still, it would be less risky to ask the jury to consider misdemeanor charges, which because of New York merger rules would at most sentence the former president to two years in jail."
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