Jul.14

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Dem 51

   

GOP 49

Maybe the Legal Pundits DO Get It

Yesterday, we had an item about the potential for a rogue juror in one (or all) of Donald Trump's legal cases, under the headline "The Legal Pundits Don't Get It Either." The central point of that piece was that it's going to be tough to craft juries without any die-hard MAGA types on them, and that jurors who simply won't vote to convict the Dear Leader may end up being his salvation.

Today, we're going to start a run of readers' jury-service narratives that speak to the things that happened in the jury room (see below). Reading those entries affirms what every reader surely already knows: Anything can happen with a jury made up of citizens chosen (largely) at random. The involvement of Trump, and the fact that there are very few Americans who do not have a strong opinion about him, simply increases the chance of unexpected results.

That said, we also thought we would provide the counterpoint to yesterday's piece. It is absolutely the case that Trump could be dead-to-rights, and that he could nonetheless be saved by a friendly juror. But it's also the case that he should not be sleeping easy. Here are some of the main reasons why:

• Track Record: Since becoming president, Trump has been in front of a jury once (E. Jean Carroll case) and he's used a settlement (Trump University) to avoid a second occasion. Numerous of his acolytes, from Paul Manafort to Steve Bannon to Roger Stone, have also been in front of juries. Before each trial, there was a surfeit of op-eds about the possibility of a rogue juror. And yet, it hasn't happened. Even though there were known staunch Republican and/or MAGA members of each of those juries, their politics were not enough to overrule their oath as jurors.
  
  
• Voir Dire: We keep coming back to this, but it's worth noting again. The people who evaluate jurors, which includes counsel on both sides of the case, as well as the judge, are generally pretty good at weeding out bad apples. Trump's lawyers know they are going to be stuck with some Biden voters. Jack Smith knows he is going to be stuck with some Trump voters. The key is not to find a non-Trump or non-Biden jury, since that won't happen, it's to find a jury that will be guided by the facts.
  
  
• Peer Pressure: Even if a too-Trump-friendly juror sneaks through voir dire, it's not so easy to sit in a jury room and withstand hours of pressure from 11 other jurors. It is also not so easy for most people to flagrantly disregard the law and their oath. Generally, people want to think of themselves as being decent, honorable, etc., and are not sociopaths willing to completely ignore the distinction between right and wrong.
  
  
• The Numbers Game: Thus far, Trump is facing two criminal cases. One of them, the one in New York, is in a venue, and before a judge, that are none-too-friendly to the former president. The other, the one in Florida, is in a friendlier venue and with a judge that, well, the jury's still out (no pun intended). Trump may well get lucky in one case, or even two, particularly if he ends up with a judge willing to tote his water. But if he ends up indicted four or five times? And if any mistrials are retried? He's not likely to hit the jackpot seven or eight or nine times. To take one example, Aileen Cannon sits in the reddest part of the United States District Court for the Southern District of Florida. Nearly any other judge in that District sits in a much bluer town. And that's before we consider a possible case in Washington, DC, where MAGA types are roughly as scarce as people who like Sen. Ted Cruz (R-TX).
  
  
• Juror Swapping: This is a very important point, and we have seen very little discussion of it. Since we are not attorneys, we're going to be very careful to show our work, so readers can verify for themselves. However, the basic point is that, even once deliberations have begun, it is possible to boot a rogue juror. It's not common, but it's possible.
  
  To start, Rule 24 of the Federal Rules of Criminal Procedure says that up to six alternate jurors may be empaneled by a judge. And those six can be dismissed once deliberations begin, or they can be held over in case a substitute is needed. Undoubtedly, in a case involving a former president, the maximum number of alternates will be chosen, and they will be retained until the bitter end. No cutting corners with something this high profile.
  
  More important to this discussion is Rule 23, which says "After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror." There is also Rule 47, which says "During trial or deliberation, the court may excuse a juror for good cause." So, it's possible to dump one juror and fly with 11, or to dump one juror and replace them with a different juror.
  
  The only question left, then, is: "What does 'good cause' mean?" There, the Federal Rules of Criminal Procedure are wanting, because they provide no definition. There's little question that a family emergency, a health crisis, the commission of a crime, etc. are "good cause." More broadly, there's also little question that a judge has broad discretion in determining "good cause." And, as a consequence of judges exercising that discretion, there is also substantial case law sustaining the removal of jurors for various hostile-to-justice behaviors. In U.S. v. Kemp (2007), for example, a judge's decision to remove a juror for bias and refusal to deliberate was upheld. In United States v. Wetselaar (2017), a judge's decision to remove a juror solely for refusal to deliberate was upheld.
  
  Needless to say, a judge who is in the bag for Trump is not likely to exercise this rather extraordinary power. But a judge who is not in the bag, and who learns (say, through questioning the foreperson of the jury) that one juror is unwilling to participate in the process? There could absolutely be a change in jurors. Should there be a conviction thereafter, Trump would appeal, of course. But the Federal Rules of Criminal Procedure and existing precedent would not be on his side.

The bottom line is this: As we wrote yesterday, anyone who says the case against Trump is a done deal, and that he's 100% done for, is simply not correct. There are too many variables to be so certain. But anyone who says that he's certain to skate, thanks to the likelihood of seating a friendly juror, is equally wrong. There are all kinds of problems with that "strategy," which may be why Trump seems to be more interested in pursuing it than are the legal professionals in his employ.

Also, as long as we are on this subject, we'll note a couple of news-ish items on this front. First, CNN reported yesterday that former aide Hope Hicks and current son-in-law Jared Kushner both testified before the Washington grand jury. Nobody knows what was said, which is why this is only news-ish, but the point of two of the most inside of Trump insiders being there was probably not to exchange quilt patterns and gluten-free pizza recipes.

And finally, a group of six lawyers writing for Just Security has just published a proposed model prosecution memo on the subject of Trump, election interference and the 1/6 insurrection. And by "prosecution memo," we really mean "prosecution novel" (it's 264 pages and 116,000+ words). Head over there and read it, if that's your thing, but the two biggest takeaways are: (1) Trump's got a world of trouble when it comes to the insurrection, and (2) the lawyers' guess is that an indictment is coming very soon, perhaps even before Fani Willis gets going in Georgia. If everyone is reading the tea leaves correctly, Trump could double the number of indictments he's under by the time the U.S. celebrates National Failures Day (August 15). (Z)