F ormer president Trump was convicted last week on 34 charges of the same crime — falsifying business records with an intent to defraud that included an intent to conceal another crime, under §175.10 of New York State’s penal law.

One of the arguments made in defense of the jury’s verdict — which was consistent with Judge Juan Merchan’s flawed legal instructions — is that critics are wrong in contending that (a) there is doubt about what the “other crime” was, and (b) Merchan told the jury they did not need to be unanimous on what the other crime was.

To my mind, this defense of the prosecution misconstrues the concept of conspiracy in the criminal law, which leads to a mistaken conflation of “ends” and “means.”

These errors are understandable in light of the cockamamie draftsmanship of the “other crime” that Manhattan district attorney Alvin Bragg’s prosecutors finally settled on. (Bragg did not allege the other crime in the indictment, even though it is central to charges — it is what exacerbates a misdemeanor records-falsification offense into a felony.)

According to the state, the other crime that Trump cooked his books to conceal was a misdemeanor conspiracy offense. Codified in New York’s election law — specifically, §17-152 — the conspiracy offense is defined, in pertinent part, as follows:

Conspiracy to promote or prevent election: Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means . . . shall be guilty of a misdemeanor.

The statute is confusing, departing markedly from the usual articulation of conspiracy crimes.

The Objective of a Conspiracy Must Be a Crime

In the criminal law, a conspiracy is an agreement by two or more people to commit a crime. The essence of the offense is a meeting of the minds on an objective that the legislature has criminalized in a statute.

Easy examples are conspiracies to commit a murder or rob a bank. Homicide and bank robbery are codified as crimes by all state legislatures; ergo, a conspiracy to carry out a murder or rob a bank is a crime. A conspiracy offense is separate from the offense that is its objective; that is, one can be guilty of conspiracy even if the objective crime is not achieved. That’s because conspiracy targets the plot — the agreement — rather than the resulting criminal act. Our homicide example makes the point: There is no crime of murder unless the target is actually killed; but there can be a crime of conspiracy to commit murder if it’s proved that people plotted to commit a murder that wasn’t ultimately carried out.

Significantly, though, absent a clearly criminal objective — an aim that is itself a crime — there can be no criminal conspiracy.

Ends vs. Means

A second point, as a matter of background: In many indictments, the state spells out not only the end of a conspiracy (meaning, the crime that is the objective of the agreement) but the means by which conspirators sought to achieve the end. Let’s say A, B, and C are indicted for conspiring to rob a bank. The end of the conspiracy is the robbery of the bank. The means might include that A will obtain ski masks, B will supply a gun, and C will drive the getaway car.

Importantly, the thing that really matters — the “essential element” of a conspiracy crime that the government must prove beyond a reasonable doubt to the unanimous satisfaction of the jury — is the end, not the means. As long as the jurors concur that A, B, and C all agreed on the objective crime — bank robbery — they may convict A, B, and C of conspiracy even if they find the state did not prove the means as charged.

As for the means, the jury may not agree that the state proved them. For example, some members of the jury may conclude that the state didn’t actually establish that B or anyone else was going to supply a gun; other members of the jury may believe that it was A who was supposed to arrange the getaway car, not C as the indictment claimed. That is beside the point. The means are not essential elements of a conspiracy crime — i.e., the elements prosecutors must prove beyond a reasonable doubt. In fact, prosecutors do not have to allege means in a conspiracy indictment at all. Typically, the state does allege means because this can help prosecutors persuade the jury that there was, in fact, a criminal agreement — on the commonsense theory that the best evidence that a criminal agreement existed is that people acted in a way designed to achieve it.

§17-152 Confounds Means with Ends

With that as background, let’s turn to §17-152, the election-law misdemeanor conspiracy offense that Bragg claims is the “other crime” Trump falsified his records to conceal. Again, and as germane in Trump’s case, it targets a conspiracy (a) to promote or prevent the election of any person to a public office (b) by “unlawful means.”

In the end, Bragg alleged that there were three “unlawful means”:

(See Jury Instructions, pp. 31–34.)

Here is the problem: What §17-152 misleadingly labels “means” are actually ends.

Why do I say that? Remember, a conspiracy is an agreement to commit a crime. Without a criminal end there can be no conspiracy. But in §17-152, there can be no criminal end without what the statute confusingly labels the “unlawful means.” That is, what the statute seems to describe as the criminal end is not actually a crime. It describes the objective of the “conspiracy” as “to promote or prevent the election of any person to a public office.” But it is not a crime to promote or prevent the election of a person to public office. Consequently, an agreement to do so, by itself, cannot establish a criminal conspiracy.

What makes the agreement criminal is not the objective of promoting a candidate’s election; it is that the promoting is done by actions that violate the law. Those actions, then, are not means; they are ends. The statute incorrectly describes them as “unlawful means”; to the contrary, they are the criminal objectives of the conspiracy because, without them, there can be no conspiracy crime.

Contrast §17-152 with criminal conspiracies as they are normally codified in penal law. As seen in our above example, if someone is charged with conspiracy to rob a bank, the objective — bank robbery — is clearly a crime; it thus makes no difference whether the state alleges or proves the means by which the conspiracy was committed.

The flaws of §17-152 are best illustrated if we posit a hypothetical bank-robbery conspiracy statute modeled on §17-152’s erratic formulation. Let’s say a state legislature codified a bank-robbery conspiracy statute as follows:

Conspiracy to withdraw money from a bank: Any two or more persons who conspire to go to a bank and to withdraw money by unlawful means . . . shall be guilty of a crime.

Obviously, it is not a conspiracy crime for two people to go to the bank. Moreover, it is not a crime for them to agree to withdraw money while at the bank. What makes the agreement to go to the bank and withdraw money a conspiracy crime is what our §17-152-modeled hypothetical statute erroneously describes as the “unlawful means” — which, of course, are to withdraw the money by coercion and without legal entitlement.

What our hypothetical statute calls “means” are actually the criminal objective — the end — that makes the agreement a conspiracy to rob the bank. No matter how the statute describes it, no one would say the coercion and lack of legal entitlement are just the means; they are the end, the objective that makes the agreement illegal — that makes it an agreement to rob the bank. Furthermore, no one would say that a jury could convict unless they were unanimous on what the statute confusingly describes as the “unlawful means” because, without those “means” — without coercion and lack of legal entitlement — there would be no plot to commit a robbery, and hence no conspiracy crime.

In Trump’s case, it was not a conspiracy crime for him, Michael Cohen, and David Pecker to agree to promote his election. It could only be a conspiracy if they agreed to promote it by what §17-152 describes as “unlawful means.” “Means” are a misnomer; in reality, the “unlawful means” are the criminal ends that are the objects of the conspiracy.

The Reversible Error in Trump’s Case

Because promoting Trump’s election was not a crime, there could be no conspiracy unless the conspirators agreed to commit a crime in the course of promoting it. As presented to the jury, that conspiratorial crime could have been an agreement (1) to violate FECA; (2) to falsify other business records (i.e., other than the Trump Organization records charged in the 34 counts); or (3) to commit tax offenses related to the generation of falsified documents.

It would not have been problematic for Judge Merchan to instruct the jurors that they need not find all three of these objective crimes. The jurors should, however, have been told that they had to find at least one of these objective crimes and they had to be unanimous on that finding in order to convict Trump. It would also have been beneficial, for appellate purposes, if Merchan had directed the jury to complete a special verdict form in which it would answer interrogatories specifying which of these objective crimes it found.

Instead, Judge Merchan instructed the jury as if the three objective crimes were merely means. They were not. They were the criminal ends necessary to establish a conspiracy. By instructing the jury that the three crimes were merely means by which the conspiracy was committed, and that it did not have to be unanimous in finding that Trump agreed to commit one or more of them, Merchan committed reversible error.