Former President Donald Trump is expected to be hit with criminal charges in the District of Columbia, 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 the 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 will be put on trial in the District, where he remains deeply unpopular. In the 2016 presidential election, Mr. Trump garnered a mere 4% of the vote in the city and his Democratic opponent, Hillary Clinton, won a commanding 91%. Four years later, Mr. Trump won 5% of the vote and Joseph R. Biden won 93%. Mr. Biden’s 88% margin of victory was the largest secured by any major party’s presidential candidate in any jurisdiction since Franklin D. Roosevelt’s landslide win in 1936.
In 2016, Mr. Trump received the lowest popular vote and the lowest share of votes in the District since it was granted electors in 1961. Yet he was more unpopular among D.C. voters when he left office than when he was elected. A Morning Consult poll found that 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 Committee] 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 D.C. court go beyond potential jurors.
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“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 the District that Mr. Davis questioned whether that’s the reason prosecutors are pursuing the case there. Mr. Smith has already indicted Mr. Trump in Florida, a state Mr. Trump carried in 2020, in a case accusing the former president of illegally mishandling 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 D.C. Council has not had a Republican member since 2009.
Other courthouse episodes have also raised concerns.
After 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.
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“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, an attorney 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 had always been “on the same side” as Mrs. Clinton. A man slammed the Sussmann case as a political prosecution, and a 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 D.C. courtroom said they had 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 Rep. Alexandria Ocasio-Cortez, New York Democrat, told the court that it would be “hard to remove” her feelings 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 investigated FBI wrongdoing 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 case in the suburb of Alexandria, Virginia. Both ended in acquittals.
Yet the only two Trump associates to go to trial in the Washington area were convicted. Paul Manafort was convicted in Alexandria of financial fraud crimes and later pleaded guilty to separate but related charges in the District, avoiding a trial there. A D.C. jury convicted Trump adviser Roger Stone on seven counts of lying to Congress.
Although 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.
The federal court system, however, has no restrictions on where a case can be located.
Mr. Manafort’s attorneys sought to relocate the trial to more conservative Roanoke in southwestern 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 would be tricky.
He said defense attorneys will have difficulty finding potential jurors who do not have strong opinions about Mr. Trump, don’t work for the federal government or were not affected in some way by the riot at the Capitol.
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 either 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 supporter. She 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.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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