“The rule of law means that the law treats each of us alike: There is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor.”
U.S. Attorney General, Merrick Garland, September 17th.
For almost any other criminal defendant in the nation, the tsunami of evidence that has been presented against Donald John Trump – including violation of a litany of election statutes, tax evasion, fraudulent bank applications, conspiracy, sedition, lying to a federal officer, obstruction of justice, violation of various federal records acts, etc., etc. – would at the least have led to one or more major indictments and probably a plea bargain given the apparent exceptionally high probability of conviction. But where delay and polarization are the defendant’s pattern and strongest of the strong suits, where pervasive divisiveness defines the entirety of American society today, Donald Trump has one massive ace up his sleeve: finding a federal or state jury sufficiently unbiased to reach a verdict and survive an appellate challenge, borders on impossible. Just one stubborn holdout juror can result in a mistrial.
To make matters worse, the violence prone MAGA backers and militia, have issued detailed and credible threats against police and FBI officers, judges and magistrates and prosecutors virtually every time a new criminal investigation, action or ruling is made that does not favor Trump. Will that threat list include grand jurors as well as any trial jurors in any Trump criminal trial? Pro-Trump conspiracy theorists, knowing the triggering buzzwords to evoke protests (or violent protests), scan every Trump social media post, every interview, the entirety of Trump’s rally speeches and even the words of Trump’s closest associates, looking for instructions from their leader. Anyone accorded a pejorative label by the ex-president is in jeopardy.
Will courts where any such trial may take place be forced to become armed camps, surrounded by cadres of well-armed officers (even military) wearing body armor behind specially erected barriers? Think about how many more government officers the January 6th Capitol siege defenders needed… but never secured. Look at the horror of that occupation, the death and injury toll, and the number of armed attackers waiting in the wings for specific order from the then-president. Will potential jurors live in fear? The Sixth Amendment to the U.S. Constitution requires such trials to take place in the district where the criminal act purportedly took place, although courts have changed venues to maximize impartiality.
Which brings me back to the simple issue posited by the title of this blog: empaneling a truly “impartial jury” (per the Sixth Amendment) to be the trier of facts in any Trump criminal trial. In a world of passionate biases and an abundance of individuals within the Trump orbit with a proclivity to lie, how exactly can an individual juror’s biases be revealed in customary jury questioning (voir dire)? An impossible task, one that may in significant part explain the dearth of indictments against the ex-president. The Department of Justice (and parallel state agencies) clearly appreciate that challenge… one that just might allow an obvious felon to walk.
You might surmise that prosecuting and defending attorneys just might want to explore that personal bias by looking at a potential juror’s texts and social media posts in search of misconduct and bias. But if that were a general rule, the entire jury selection process would be next to impossible to conduct with any realistic efficiency. Sure, if a juror lies about that bias during voir dire, that is the crime of perjury, but if the truth ever does come out, you still get a mistrial.
But in political trials, those biases become important, and with a trial of the ex-president of the United States, perhaps even critical. So can a court take voir dire to another level and order inspections of such postings and exchanges, most of which are on the individual juror’s personal digital devices? While judges often bring jurors into chambers for private questioning when a defendant has reason suspect a bias – under Remmer v. United States, a 1954 U.S. Supreme Court decision – can a court delve into the juror’s individual digital media? Can that be prompted by the prosecutor?
Until the U.S. Supreme Court rules – remembering the deeply conservative bias reflected in that court – that is an open question… except in the Sixth Circuit. The U.S. Sixth Circuit Court of Appeals (which has six Trump and two Biden appointees) covers Michigan, Ohio, Kentucky and Tennessee. The case (In Re Alexander Sittenfeld) involved a political crime, as Debra Cassens Weiss, writing for the September 27th Journal of the American Bar Association, explains. On September 23rd, the appellate court addressed “an appeal by Alexander ‘P.G.’ Sittenfeld, a former Cincinnati City Council member who was convicted of bribery and attempted extortion under color of official right.
“Sittenfeld had sought a forensic examination of the electronic devices of ‘Juror X’ after learning that she had discussed another juror in a Facebook post, and that commenters on her Facebook posts had mentioned the trial… Juror X’s posts could be viewed only by her Facebook friends, one of whom was a court employee who told the trial judge about the posts. Juror X didn’t include facts about the case, didn’t name the defendant and didn’t discuss the proceedings.
“But Juror X wrote that another juror ‘shouldn’t be on the jury because [she] hates anyone that shares the same profession as our person on trial. Not cool!!!’… One commenter identified Sittenfeld by name, spurring Juror X to hide the comment. Another linked to an article about the case published before trial. And another commenter posted their thoughts on jury nullification and jurors’ right to return a not guilty verdict if the law is unfair…
“[The resulting ruling:] a district court has no power to order an examination of a juror’s electronic devices to determine whether an outside influence affected the verdict.” While the opinions among the deciding judges expressed the possibility that the ruling was overbroad, the implications of that order are deeply disturbing in any potential criminal trial of Donald Trump. Could this ruling, if sustained, be the Trump’s real “Get of Jail” card? It certainly makes finding that impartial jury next to impossible.
I’m Peter Dekom, and this march towards finding criminal responsibility for an ex-president tests our judicial system like no other… is there a separate system of justice for the rich and well connected; are there certain people who are truly above the law?
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