Former federal prosecutor Andy McCarthy said Thursday that if jurors couldn’t agree on which crime former President Donald Trump allegedly falsified business records to cover up, then there was “doubt” in the case.

Judge Juan Merchan issued instructions to the jury of seven men and five women Wednesday, pointing them to certain pieces of evidence in the case prior to the panel beginning its deliberations, but also telling them they did not have to be unanimous when it came to which unlawful act Trump was allegedly covering up. McCarthy and former Republican Rep. Trey Gowdy of South Carolina raised questions about the fairness of the instruction.

“It occurred to me that if the four of us were considering that question, about, like, do you think it’s the federal election campaign, do you think it’s the state election law, do you think it’s the tax law?” McCarthy said. “If the four of us were having that discussion and we couldn’t agree on that, wouldn’t we say that if the judge’s instruction on reasonable doubt means anything, that if we can’t agree on that, then there’s got to be doubt? If we can’t agree on that question, which is core to this case, namely, what is the crime that exacerbates this stale misdemeanor into a felony, if that’s not doubt, I don’t know what doubt is.”

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Gowdy earlier had said he would have required the jury to come to an agreement as to which crime Trump allegedly was covering up.

“That’s why Professor Turley and Andy and I and others almost unanimously have been dumbfounded by the way this – I mean, I would have required, if I were the judge, a special verdict form,” Gowdy, a former prosecutor, said. “If you want him guilty of the underlying misdemeanor, that’s fine, but tell us what tuxedo you are putting on that misdemeanor to make it a felony, you have three options. Right now, what’s clear is you can be unanimous in your lack of unanimity. And that is just not the foundation, the basis, of our criminal justice system, is not kind of a buffet where you can pick which dessert you want. How do you defend yourself if you don’t know what that second crime or attempted crime would be?”

Merchan has come under fire for a perceived bias against Trump during the trial stemming from an indictment on 34 felony counts of falsifying business records secured by Manhattan District Attorney Bragg in March 2023. McCarthy ripped Merchan for not making some of the documents public.

“It’s a big question that we ought to be asking. Why don’t we have the verdict form? I mean, why didn’t we have the jury instructions?” McCarthy asked. “This is not the Florida case, right? Where it’s all classified documents? This is stuff that is typically on the public record so that we can look at it.”

The jury instructions in the business records trial were posted Wednesday to the New York Courts website.

“To repeat something I said before, when I was a prosecutor, I wanted to weigh in and influence everything that went into the jury room,” McCarthy said. “It’s very important what that all looks like because some documents can be designed in a way that is leading the jury to a particular conclusion. We ought to be able to see that. There is no reason that should not be on the public record and it might give us a much better read on what’s going on here.”

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