The Daily Observer London Desk: Reporter- Donna Robert
Former President Trump is expected to be hit with criminal charges in Washington, where legal scholars say the city’s overwhelmingly liberal jury pool will make it almost impossible for him to receive a truly fair trial.
Special counsel Jack Smith informed Mr. Trump this week that he was a target of a Washington-based investigation into the Jan. 6, 2021, attack on the U.S. Capitol and his efforts to reverse the results of the 2020 presidential election. A so-called target letter is usually the last step before a grand jury pulls the trigger on an indictment.
If Mr. Trump is indicted, he would be put on trial in Washington, where he remains deeply unpopular. In the 2016 election, Mr. Trump garnered a mere 4% of the vote in the city, while his Democratic opponent Hillary Clinton won a commanding 91%. Four years later, Mr. Trump won 5% of the vote and President Biden won 93%. Mr. Biden’s 88% margin of victory was the largest secured by any major party presidential candidate in any jurisdiction since Franklin D. Roosevelt’s landslide victory in 1936.
In 2016, Mr. Trump received the lowest popular vote and the lowest share of votes in Washington since it was granted electors in 1961. And yet he is more unpopular among D.C. voters when he left office than when he was elected. A Morning Consult poll found Mr. Trump’s approval rating in the city dropped to 26% in 2021.
“D.C. is arguably the worst possible jury pool outside of conducting voir dire entirely within the [Democratic National Ccommittee] headquarters,” said Jonathan Turley, a Constitutional law professor at George Washington University.
Mike Davis, president of the Article III Project, said Mr. Trump’s problems in a Washington court go beyond potential jurors.
“It’s the worst combination for Trump — a highly-political prosecutor, largely partisan Democrat judges and a jury pool that is 90% Democrat. It’s a trifecta that guarantees Trump will be found guilty,” he said.
The odds are so stacked against Mr. Trump in Washington that Mr. Davis questioned if that’s why prosecutors are pursuing the case there. Mr. Smith has already indicted Mr. Trump in Florida, a state Mr. Trump carried in 2020, in a separate case alleging the former president illegally mishandled classified documents.
“This is Jack Smith’s insurance policy to ensure a conviction,” he said. “He’s bringing a case in D.C. because Trump got a fair judge and will get a fair jury in Florida.”
The city’s demographics support those claims. Roughly 6% of the city’s voters are registered as Republicans and the city has not had a Republican on its city council since 2009.
Other courthouse episodes have also raised concerns.
After former Obama-era White House counsel Gregory B. Craig was acquitted on a felony charge of lying to the Justice Department in 2019, a juror on the case publicly asked why prosecutors targeted him instead of Trump associates.
“I just could not understand why so many resources of the government were put into this when, in fact, actually the republic itself is at risk,” the juror, Michael Meyer, told reporters after the trial. “I was deeply offended personally … that this particular case was brought against this particular man. I mean where are the convictions related to Russia? Why did he get to the front of the line?”
At the trial of Michael Sussmann, a lawyer for Mrs. Clinton’s 2016 campaign, prosecutors struggled to find jurors who did not donate to the Clinton campaign or other democrats.
One potential juror told the court she’d always be “on the same side” as Mrs. Clinton. A man slammed the Sussmann case as a political prosecution and another woman said her husband worked for Mrs. Clinton’s 2008 campaign.
Roughly one-third of the potential jurors screened by prosecutors and defense attorneys in the Washington courtroom said they had either donated to Mrs. Clinton’s campaign in 2016 or had strong opinions about Mr. Trump.
A woman who said she donated to Mrs. Clinton, the Democratic National Committee, and Democratic Rep. Alexandria Ocasio-Cortez of New York, told the court that it would be “hard to remove” the feelings she had about the 2016 election.
“There is no question that D.C. is the preferred jurisdiction for Smith. Most prosecutors would view it as the path of least resistance in a case against Trump,” Mr. Turley said.
Special counsel John Durham, who probed wrongdoing by the FBI in the Trump-Russia collusion probe, used the reputation of the District’s juries in his sprawling 400-page report as the reason his investigation didn’t result in more criminal charges.
“Juries can bring strongly held views to the courtroom in criminal trials involving political subject matters and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of actual evidence and despite a court’s best efforts to impanel a fair and impartial jury,” he wrote.
Mr. Durham took two cases to trial in the Washington area, including the Sussmann case and a separate case in the suburb of Alexandria, Virginia. Both ended in acquittals.
Yet, the only two Trump associates to go to trial in the metropolitan Washington area were both convicted. Paul Manafort was convicted in Alexandria of financial fraud crimes and, later, plead guilty to separate but related charges in Washington, avoiding a trial there. Trump adviser Roger Stone was convicted by a Washington jury on seven counts of lying to Congress.
While Mr. Trump has a strong argument for a change of venue because of concerns about seating a qualified jury, change of venue requests are rarely granted because moving a trial is complicated and expensive.
In the federal court system, however, there are no restrictions on where a case can be located.
Mr. Manafort’s lawyers sought to relocate the trial to more conservative Roanoke in southwest Virginia, citing extreme bias against their client in the Washington area. The request was denied.
Richard Gabriel, a jury consultant, who worked for the defense teams that won acquittals in the murder trials of O.J. Simpson and Casey Anthony, said Mr. Trump could get a fair trial in the nation’s capital, but it will be tricky.
He said defense attorneys will have difficulty finding potential jurors who do not have strong opinions about Mr. Trump, don’t worked for the federal government or were not impacted in some way by the Jan. 6 riot.
The key, Mr. Gabriel said, is a strong jury questionnaire aimed at eliminating jurors who could not render a fair or impartial verdict. If constructed correctly, the questionnaires can be invaluable in detecting both an implicit or direct bias.
“The truth is Trump can receive a fair trial, but the judge needs to approve a pretrial questionnaire asking jurors about him and their knowledge of Jan. 6,” he said. “That is one way to find if a potential juror has prejudged the case or can be open-minded and fair.”
He pointed to a juror in the Manafort case who described herself as an ardent Trump fan, who told Fox News that she convicted the former Trump campaign chairman because of the evidence.
“I did not want Paul Manafort to be guilty, but no one is above the law,” she said.
