The judge presiding over the New York hush money trial against Donald Trump appears ready to hand favors to both the prosecutors and the former president’s defense on instructions to give the jury before they deliberate on a verdict for the historic case.

Judge Juan Merchan said he expects to hand the final instructions back to parties on Thursday, which could ultimately prove to be a double-edged sword for both Trump and Manhattan District Attorney Alvin Bragg. For now, it’s a waiting game to see whether Trump or New York prosecutors will achieve their desired outcomes.

Despite the hours of revealing testimony and tense cross-examination throughout the weekslong trial, the jury instruction phase of the trial is arguably the most important portion and could determine the threshold for finding whether Trump is guilty or innocent. Trump did not take the stand despite repeatedly saying he would be willing to testify in his defense, a move legal experts largely contend was wise.

As prosecutors and defense lawyers sparred Tuesday afternoon over the parameters of those instructions at a hearing known as a charge conference, Merchan emphasized he wanted to keep the rules as “easy as possible for the jury.”

At the core of Bragg’s case is the $130,000 payment that former Trump lawyer Michael Cohen made to porn star Stormy Daniels in 2016 to prevent her from going public with her claim about having had a sexual encounter with Trump a decade earlier. Prosecutors have accused Trump of falsifying business records related to that payment, and they have described the scheme as a form of election interference. However, Trump was not charged with any election-related offense.

The jury is composed of 12 members and six alternates and will likely begin deliberations by May 29, according to Merchan. Trump has pleaded not guilty to the 34-count indictment brought by Bragg, an elected Democrat.

After several hours of debate on Tuesday, both sides appeared to win over the judge on certain requests for the instructions, and the final structure of how Merchan would explain the law to jurors remains unclear. Merchan said he aims to deliver parties a final version of those instructions on Thursday.

Here are the key points Merchan must address for the jury:

Trump’s defense lost a key argument on Tuesday after they hoped that jurors would be advised that they had to find “beyond a reasonable doubt” that Trump had an intent to enter and orchestrate a conspiracy prosecutors say involved him. That alleged conspiracy involves discussions between David Pecker, the former publisher of the National Inquirer, and Cohen.

The 34 business falsification counts that Trump faces become a felony only when there is an intent to conceal another crime. But the judge said the law does not require Bragg’s team to show that Trump intended to orchestrate the conspiracy — rather, prosecutors must only show that by allegedly falsifying business records, Trump intended to conceal a conspiracy.

Merchan’s decision could backfire against the prosecution if Trump is convicted and seeks to appeal the decision to a higher court.

“One significant aspect that should be kept in mind is that if a judge gets the jury instructions wrong, if he misinstructs the jury on the law, that is a classic example of what an appeals court will treat as reversible error,” Thomas Dupree, an appellate advocate, told Fox News on Tuesday.

Prosecutors say jurors should not need to agree on what the other or “predicate” crime that Trump allegedly sought to commit, aid, or conceal by allegedly falsifying records.

Falsifying business records alone is ordinarily a misdemeanor. The charge is upgraded to a felony only if the records are falsified when “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof,” the statute states.

Trump’s lawyers argue there is no predicate crime, and that all jurors should be required to agree on one in order to convict Trump of a felony. Bragg’s team initially laid out four possible predicate crimes, one of which Merchan ruled out before the trial. The remaining possibilities include a tax crime and the violations of state or federal election law.

Prosecutors suggest the former president’s alleged participation in a “catch and kill” scheme with the help of Cohen and Pecker amounted to an illegal conspiracy to violate campaign finance laws, which prosecutors indicate would satisfy the requirement to upgrade the counts from misdemeanors to a felony even though Trump was not charged with any campaign finance violations.

Bragg’s team seems to believe the main predicate crime, or the one Trump sought to commit, aid, or conceal involves state election law 17-152, which is conspiracy to promote or prevent an election. The law makes it a misdemeanor when two or more people “conspire to promote or prevent the election of any person to a public office by unlawful means,” and it underpins the prosecution’s theory behind Trump, Cohen, and Pecker’s communications making up a conspiracy. Prosecutors say the “unlawful means” of influencing an election that the state law addresses was an intent by Trump to violate federal campaign law, thereby forcing jurors to follow a three-step process for the jury to determine guilt or innocence.

The state “has to prove not only that Donald Trump did what they have alleged, they have to prove that he did it with intent to defraud,” white collar defense attorney Sol Weisenberg told Fox, adding “not only that … but with the specific intent to commit or cover up another crime.”

Defense Attorney Emil Bove told the court Tuesday that the former president’s team would like the jury to be provided in-depth instruction about federal election law, noting that the judge should set a high bar for them to determine that falsification of business records was connected to a campaign finance violation.

Bove wants the jury to be informed that National Enquirer publisher American Media Inc. “didn’t admit” to any violations of the law in a non-prosecution agreement it reached with federal prosecutors in 2018 over its hush money payments to a Trump Tower doorman and Karen McDougal, another woman who claimed to have had an affair with Trump. Merchan has not ruled on that request, which would effectively bar the prosecution from attempting to paint Trump as guilty by association. Prosecutor Joshua Steinglass hinted at that suggestion, noting the state does not plan to use guilty pleas from other witnesses as “evidence of the defendant’s guilt.”

By the end of the charge conference, Merchan appeared to dissatisfy both parties over their litany of jury instruction requests. 

For example, Merchan dealt a blow to Trump’s team before the court adjourned, saying that if prosecutors proved the former president had an “intent to defraud” when he falsified business records, then there was no “separate requirement of intent” for the undefined other crime that the jury would need to consider.

In other words, if some jurors believe Trump falsified business records to cover a tax crime, while others say he did it to cover an election crime, they can still convict Trump on felony-level falsifying records charges, despite disagreeing on the predicate crime.

Conversely, Merchan did seem poised to rule against Bragg’s team in a way that could damage their case on the question of whether to tell the jury that Trump can be convicted if the panel finds that falsified business records were “reasonably foreseeable” based on his actions.

“I don’t like the reasonably foreseeable language,” Merchan said.

In order to reach to the first step — finding that Trump falsified the records — in their three-part process, Bragg’s team would like the jury to be told that the alleged crime does not need to be explicit. In other words, prosecutors want the jury to be told it makes no difference whether Trump deliberately “made or caused” the false business records to occur.

Prosecutor Matthew Colangelo, a former senior Biden administration Justice Department official who resigned to work in Bragg’s office in December 2022, argued the law supports the prosecution’s position.

Bove said that Bragg’s theory would boil down to an argument that Trump was “causing the causer.” The defense attorney asked the court about the logic behind such an argument, including what would happen if former Trump Organization Allen Weisselberg “caused someone to do something and then President Trump caused Allen Weisselberg. It doubles up on accessorial liability.”

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Colangelo asked if Bove’s point was “already covered in the definition of accomplice liability.” Still, Merchan did not appear to appreciate the state’s framing of the question.

Merchan will ultimately determine this issue on Thursday, though he seemed to signal favorability for the defense.

Ashley Oliver contributed to this report.