Is it possible for President Trump to receive a fair trial as the law requires?

From RealClearInvestigations. Defense attorneys have coined the term “January 6 Jurisprudence” to describe the treatment received by the more than 1,200 defendants arrested so far in connection with the events of Jan. 6, 2021. This carve-out legal system involves the unprecedented and possibly unlawful use of a corporate evidence-tampering statute; excessive prison sentences and indefinite periods of pretrial incarceration; and the designation of nonviolent offenses as federal crimes of terrorism.

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A universal feature is the requirement that a Jan. 6 defendant, usually a supporter of Donald Trump, face trial in Washington, D.C., a city overwhelmingly populated by Democrats. Federal judges have denied every change of venue motion filed in Jan. 6 cases, arguing those who protested at the Capitol can get a fair trial in the nation’s capital.

The results so far appear to contradict the court’s collective conclusion. Court records show the jury selection process has repeatedly revealed a strong degree of bias against anyone tied to Jan. 6. At least 130 defendants have been convicted at trial – not one has been acquitted by a jury – and hundreds have been sentenced to prison time ranging from seven days to 22 years. …

This is the same environment that now awaits the former president as he prepares to stand trial in Washington on March 4, 2024 for election interference, in addition to an array of criminal and civil cases against him elsewhere.

While Special Counsel Jack Smith’s team and Trump’s counsel spar over a number of issues, perhaps the biggest dispute will concern whether it will be possible to seat an impartial jury for the presumptive 2024 GOP nominee in a city that voted 92% for Joe Biden in 2020. …

U.S. District Court Judge Tanya S. Chutkan recently set a jury selection schedule for Smith’s four-count indictment against Trump for the events of Jan. 6. She ordered both parties to begin developing a questionnaire, due Jan. 9, 2024, that hundreds of D.C. residents will be asked to complete so the court can begin the initial step of weeding out unqualified jurors. …

The Sixth Amendment guarantees, among other rights, “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” In extreme cases, criminal defendants can petition to move their trial out of the prosecuting jurisdiction for a number of reasons, not the least of which is sustained, negative press coverage that taints the jury pool.

Trump’s lawyers are not discussing their strategy publicly, but sources have indicated to RealClearInvestigations that the defense will file a change of venue motion in the next month or two. Given the partisan composition of Washington, saturation coverage of the former president’s ongoing legal woes, and the city’s relatively small population, Trump will have a strong argument in favor of moving the trial outside of the nation’s capital.

Yet a review of Jan. 6 cases to date suggests the odds are against that. Not a single judge on the D.C. District Court has granted a change of venue motion even for high-profile trials such as those for members of the Oath Keepers and the Proud Boys, the so-called “militia” groups involved in the Capitol protest. …

Judge Chutkan’s handling of her first jury trial for a Jan. 6 defendant, Russell Alford, also indicates how Trump might fare. Alford was charged in March 2021 with four misdemeanors for his 11-minute nonviolent walk through the Capitol.

In rejecting Alford’s bid to move his trial, Chutkan downplayed the partisanship of D.C. residents and surveys that indicated higher-than-average prejudice against Capitol protesters. In her April 2022 order, Chutkan insisted that “jurors’ political leaning are not, by themselves, evidence that those jurors cannot fairly and impartially consider the evidence presented and apply the law as instructed by the court.” She also claimed an “expanded examination will effectively screen for prejudice among potential jurors in this case.”

A review of court transcripts, however, raises questions as to whether Chutkan fulfilled her promise. …

After one day of voir dire, which is the direct questioning of potential jurors, Chutkan still allowed individuals who expressed critical views about anyone involved in Jan. 6 to serve on the panel. One juror said people who were at the Capitol on Jan. 6 “were probably guilty.” …

Did People Lie to Get on Jan. 6 Juries?

Alford now wonders whether jurors were being honest. “They told us what we wanted to hear so they could get on the panel,” Alford told RCI by phone from a halfway house last month. He had just finished serving 176 days of a 12-month prison sentence imposed by Chutkan. “In any other jurisdiction, we would have won. We thought we could get a fair shake, but they all were connected to the government.”

Alford’s experience is not an outlier. Post-trial interviews with jurors have often revealed bias. In a lengthy discussion with C-SPAN’s Brian Lamb following her service on an Oath Keepers’ trial earlier this year, a woman named Ellen, a former co-worker of Lamb, described how she desperately tried to get selected as a juror. ….

Democrat Mosby’s Change of Venue

The situation was quite different, however, for a former Democratic elected official recently on trial in neighboring Maryland. A grand jury indicted Marilyn Mosby, the former state’s attorney for the city of Baltimore, in 2022 on four counts of perjury related to COVID fraud. Her lawyers asked the judge to move the trial, set to begin on Oct. 31, 2023, out of the Baltimore area to the southern district of Maryland based on studies that uncovered higher levels of bias among prospective jurors in the northern district, the location where the trial was set to take place. …

In granting Mosby’s motion in September, Judge Lydia Kay Griggsby concluded that “pre-trial publicity about this case has, to a degree, negatively impacted the views held about the Defendant by potential jurors residing in the Court’s Northern Division more so than their counterparts in the Southern Division.” (Mosby was convicted on all counts on Nov. 9.)

Defense surveys in Jan. 6 cases point to the same, if not higher, level of prejudice among D.C. residents. A May 2022 survey compared attitudes between Washington residents and those living in areas of Florida, North Carolina, and Virginia. While 85% of D.C. residents consider Jan. 6 an “insurrection, attack, or riot,” only 41% of Florida residents agreed with the description. …

Unlike the judge overseeing the Mosby matter, D.C. judges are unmoved by such disparities. …

Jury selection for a November 2023 trial indicated little change in prospective jurors’ intensely negative views about Jan. 6. Voir dire for the trial of Taylor Johnatakis, a man from Washington state charged with multiple offenses for his participation in the Capitol protest, showed a sustained level of prejudice against Jan. 6 defendants. Five of the first 10 individuals were excused after confessing they could not fairly assess the evidence or follow the judge’s instructions to set aside their opinion to reach a verdict. …

Court watchers say such attitudes will make it especially hard to seat a fair jury for the most controversial figure in America, Donald Trump.

It is difficult to contemplate how the government and Chutkan will get around years of hyper-critical coverage of Trump – not just related to Jan. 6 but stretching back to claims Trump illegally colluded with Russia to rig the 2016 election and every investigation in between.

Still, it is highly unlikely that Chutkan will consent to Trump’s request to move the trial to another jurisdiction. …

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(Excerpt from RealClearInvestigations. Photo Credit: Douglas P. DeFelice/Getty Images)