I don't know what all trump's team has argued, but they did argue constitutional issues at least wrt multiplicity issues. I would think on appeal (any waiver type issues aside if applicable), due process concerns would become an issue. Will be interesting. A lot of the analogous cases come from burglary statutes: (paraphrasing) entering with intent to commit a crime. the 'with intent to commit a crime' is an 'element' and the jury just has to be unanimous on the element and can have varying opinions on what the 'underlying crime' was going to be. That is of course the Mackey case.
so here the 'element' is: "That the defendant did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof."
In Mackey as they point out in burglary cases "the intent necessary for burglary can be inferred from the circumstances of the entry itself." Inferring criminal intent is seems far from the case when someone pays their lawyer and logs it as legal expenses.
In Richardson, the USSC says "Finally, this Court has indicated that the Constitution itself limits a State's power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition." Pretty sure that 'falsifying business records' under these multitudes of theories probably doesn't have much history or tradition, and it certainly seems to risk some unfairness. The "element" in Richardson: "such violation is a part of a continuing series of violations of [the federal drug laws, i. e.,] this subchapter or subchapter II of this chapter." The Court did not say that the jury could just be 'unanimous' that some continuing series occurred - instead the Court said the jury has to be unanimous in EACH alleged violation.
in Schad, the plurality pointed out:
"
That is not to say, however, that the Due Process Clause places no limits on a State's capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant's conviction without jury agreement as to which course or state actually occurred. The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning,
see Lanzetta v. New Jersey, 306 U. S. 451,
306 U. S. 453 (1939) (citing
Connally v. General Construction Co., 269 U. S. 385,
269 U. S. 391 (1926)) carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge against him."
and then Scalia's part is interesting (not that the charge here is a novel umbrella charge with tax evasion allegations of course....)
"As the plurality observes, it has long been the general rule that, when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.
See, e.g., People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903);
cf. H. Joyce, Indictments 561-562, pp. 654-657 (2d ed.1924); W. Clark, Criminal Procedure 99-103, pp. 322-330 (2d ed.1918); 1 J. Bishop, Criminal Procedure 434-438, pp. 261-265 (2d ed. 1872). That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her.
While that seems perfectly obvious, it is also true, as the plurality points out, see ante at 501 U. S. 633, that one can conceive of novel "umbrella" crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-6 verdict would seem contrary to due process."I am not 'pro-trump' (was a DeSantis guy), but the lawfare here is disgusting imho and that admittedly may creep in. But there at least appears to be a good basis in some of these cases that, at least as applied here, there are due process concerns if the jury doesn't have to be unanimous about the underlying crime.
