'Red herring': Legal experts shut down MAGA governor's latest attack on New York judge

The jury is now deliberating in former President Donald Trump's criminal hush money case in Manhattan, where the former president is charged with felony business fraud for allegedly concealing payments to adult film star Stormy Daniels, a matter Manhattan District Attorney Alvin Bragg is arguing was a backroom scheme to interfere with the 2016 presidential election.

But Trump supporters are now seizing on a part of Judge Juan Merchan's instructions to attack the process — specifically the instruction that the jury does not have to unanimously agree on the underlying crime that enhances the fraud to a felony, as long as they unanimously agree he is guilty of the fraud and that the fraud meets the criteria for a felony conviction.

This is a standard part of the law in New York, but some — including Gov. Kristi Noem (R-SD) — are now claiming this is unconstitutional, based on the Supreme Court's decision in a 1999 federal drug crime case.

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"Judge Merchan’s jury instructions are a direct violation of Richardson v. US, a decision that LIBERAL Justice Breyer wrote and CONSERVATIVE justices like Scalia and Thomas agreed with. Totally RIGGED trial!" wrote Noem on X, providing a passage from the court's ruling that states, "The jury must be unanimous as to the 'series' of underlying offenses in a CCE prosecution. That is, the jury must unanimously agree not only that the defendant committed some 'continuing series of violations,' but also about which specific 'violations' make up that continuing series."

But Noem quickly got a fact-check from legal experts, who pointed out that Richardson was not a constitutional case; it was only interpreting a federal law as written for a specific type of drug crime, and doesn't apply here — and the Supreme Court has written other cases that say this type of jury instruction in a state law is constitutional.

"Now they have moved onto this other red herring. Richardson dealt with a specific FEDERAL statute. Not a state crime," wrote national security attorney and political commentator Bradley Moss. He added that the correct precedent here is Schad v. Arizona, a 1991 case in which the Supreme Court reviewed a murder conviction that was enhanced by a similar type of jury instruction, where the jurors didn't need to be unanimous on the basis for enhancement to first-degree murder. “Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed,” the Court wrote at the time.

Brett Chapman, a Tulsa-based attorney, had a more succinct reaction to Noem.

"Never take legal advice from a puppy killer who didn’t go to law school," he said.