From the Clemson Law Review, an interview with Seth Barrett Tillman on the New York v. Trump prosecution (and some originalism): Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman. From the early part of the interview:
[Tillman] This case [New York v. Trump] is a little bit more complex than it first appears. The allegation was a conspiracy to violate the election law. The outermost crime is the conspiracy. The object of the conspiracy was to violate the election law and the election law requires that the violation occur “by unlawful means.” We have this contraption of three levels of wrongdoing engineered by the prosecutor’s office.
The question then became what is meant by “unlawful means”—used to effectuate the object of the conspiracy. The issue here is what the jury has to agree on—that is, can each juror have a different view as to what the “unlawful means” was, or do they have to agree on the “unlawful means”? The prosecution alleged three different unlawful means but the trial court didn’t require that the jury agree on any one of them. So we don’t know if there was jury unanimity as to any one of three specific unlawful means alleged, and the question is: Was that a unanimous verdict if different jurors had different views from one another in regard to the unlawful means alleged?
I’m of the view, and I was of the view when these jury instructions were issued, that the trial court’s jury instructions were plainly wrong. This is a violation of the defendant’s Sixth Amendment jury-unanimity rights. …
Posted at 1:02 AM