Special Counsel Jack Smith could soon take a page out of District Attorney Alvin Bragg’s prosecutorial playbook — though he would have to appeal a ruling from Judge Aileen Cannon to do so.

The question of whether a jury will have to be unanimous as to the “means” President Trump used in his alleged crimes at Mar-a-Lago is coming into focus even as Judge Cannon has delayed the trial. Judge Juan Merchan ruled that Mr. Bragg’s jury did not have to be unanimous with respect to means. Trump was convicted on all counts.

The issue surfaces in south Florida in Judge Cannon’s decision to strike Mr. Smith’s mention of a secret map from his indictment of Trump. She writes that she will require the jury “to determine unanimously which means, if any, each of the two Defendants charged in Counts 34 and 36 used to commit the alleged crimes.” 

The defendants are Trump and his valet, Waltine Nauta. The counts — 34 and 36 — are withholding a document or record and concealing a document in a federal investigation, both species of obstruction. Trump has challenged those two charges on grounds of “duplicity.” The United States Court of Appeals for the 11th Circuit explains that duplicity is detected when a single count “charges two or more separate and distinct offenses.” 

Judge Cannon finds that while Mr. Smith’s indictment “appears somewhat unconventional and is susceptible to some confusion, the Court is ultimately satisfied that neither count requires dismissal.” She warns, though, “that there likely will be a need for clear prompts (and separate verdict forms) requiring the jury to determine unanimously which means” were deployed to obstruct.

Criminal law customarily mandates that “elements” of a crime must be unanimous, but that means and methods do not need to be unanimous. Elements of a crime comprise a criminal act, criminal intent, and causation between the act and the criminal outcome. If a jury fractures on any of those fundamentals, it cannot bring in a verdict of “guilty.”  

It is likely that Mr. Smith will challenge a jury instruction along these lines. He has already vociferously objected to a draft of instructions circulated by Judge Cannon that contemplated referencing the Presidential Records Act. He called those possible instructions “fundamentally flawed” and possessed of “no basis in law.” Judge Cannon explained that she was merely exploring the trial’s possible contours, not issuing a formal instruction.

If, though, her instructions do require unanimity with respect to not only elements but also means, Mr. Smith could decide that an appeal to the 11th Circuit is necessary to preserve the possibility of securing a conviction. He has already once asked Judge Cannon to reconsider a ruling relating to redaction of witness information. He called that ruling a “manifest injustice.” Judge Cannon backtracked. 

An incorrect reading of black letter law on the part of Judge Cannon could be grounds for an interlocutory appeal — meaning one before a final verdict — or even a writ of mandamus. That is a remedy the Department of Justice describes as “extraordinary” whereby a higher court instructs a lower one to act in accordance with the law. Here, the 11th Circuit could correct her instructions.  

An appeal is likely being contemplated by Trump attorneys in the hush money case at Manhattan. Judge Merchan instructed his jury that to convict they “must conclude unanimously that” Trump engaged in an election conspiracy “by unlawful means” but that they “need not be unanimous as to what those unlawful means were.” Mr. Bragg proposed three possibilities. 

Judge Merchan — in words that could eventually be repeated by Judge Cannon —  told the jury, “Your verdict, on each count you consider, whether guilty or not guilty, must be unanimous; that is, each and every juror must agree to it.”