The testimony in the trial of Donald J. Trump has been riveting and salacious, focusing on a tryst with a porn star and a hush-money payment that paved the road to the White House.
On Tuesday afternoon, the trial will take a decidedly less dramatic — but critically important — turn, as prosecutors and the defense dig into the dry legalities that will guide the jurors as they deliberate.
The two sides are expected to lay out their dueling visions for how the judge should instruct the jury as it prepares to weigh the charges against Mr. Trump — 34 felony counts of falsifying business records.
Jury instructions are typically meant to translate legal treatises into something intelligible to the 12 laypeople who will decide the case. The instructions provide jurors with a road map to help them apply the law to the facts they have gleaned from the witnesses, documents and other evidence that have been presented to them.
The New York Times has obtained early drafts of each side’s proposed jury instructions, which were filed with the court in recent days and will underpin their arguments to the judge, Juan M. Merchan. That conference will take place outside the presence of the jury.
The prosecutors’ proposed instructions, among other things, ask the judge to give the jury what legal experts said was unusual flexibility in determining whether Mr. Trump had a role in the creation of the false records at the center of the charges.
Prosecutors argue that even if Mr. Trump did not create the records himself, the jury can find him responsible if the creation of the false records was “a reasonably foreseeable consequence of his conduct.”
The defense’s request drilled down on a variety of other issues that they already sought to raise at trial.
One such issue is their suggestion that Michael D. Cohen, the prosecution’s star witness, improperly deleted data from his phone. In their request for jury instructions, they asked the judge to tell the jurors that they can infer that anything Mr. Cohen may have deleted would have been unfavorable to him.
The proposed instructions provided by both sides, and their arguments in the conference in court, give the lawyers the opportunity to have some input. But the judge has broad leeway in how he will instruct the jury on the law. The jurors will not actually receive the instructions until next week, after they hear closing arguments and shortly before they begin deliberations.
Jury instructions are always crucial, but they will be even more important in this case, which focuses on the cover-up of a sex scandal, but hinges on complex and untested legal issues. That means the outcome of the case could very well turn on the substance of the instructions jurors receive.
Here’s more about the proposals from each side.
Prosecutors want to offer jurors options to convict Trump
To convict Mr. Trump of the felonies he is charged with, prosecutors must show that he falsified business records in order to commit or conceal another crime. The prosecution’s proposed instructions say that other crime is the violation of an election law statue that makes it illegal to conspire to promote or prevent a candidate’s election by “unlawful means.”
But what are those unlawful means? Prosecutors want the judge to instruct the jurors that they can choose any of three options: a federal election law violation; the falsification of other business records; or a tax crime.
The jurors must unanimously agree that Mr. Trump conspired to promote his own election by unlawful means. But prosecutors are asking the judge to instruct jurors that they do need not need to reach a unanimous conclusion about what the unlawful means were.
The defense is taking aim at Cohen’s work for Trump
Mr. Trump’s lawyers appear to be referencing one possible defense that Justice Merchan has already rejected: the idea that Mr. Trump was simply following the legal advice of his one-time lawyer, Mr. Cohen.
In their proposed instructions, Mr. Trump’s lawyers asked the judge to remind jurors that Mr. Cohen had served as a lawyer for Mr. Trump while he worked at the Trump Organization. That could suggest to jurors that the former fixer’s role as Mr. Trump’s lawyer should affect the way they view the case as a whole.
This appears to be something of an end run around Justice Merchan’s earlier decision that Mr. Trump could not pursue a so-called advice-of-counsel defense, which argues that someone is not guilty of a crime because they acted based on a lawyer’s advice.
