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.
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. Defense lawyers say this track record helps explain why the vast majority of defendants have opted for a plea deal rather than go to trial.
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.
After Smith indicted Trump in August, a Jan. 6 defense attorney who is not representing the former president, J. Daniel Hull, told the New York Times that Washington “is the worst possible place for any Jan. 6 defendant, but especially Donald Trump, to have a trial.”
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.
Stakes are high for both sides. Trump’s lawyers must navigate constraints on how many jurors can be stricken from consideration to ensure their client gets a fair trial. The Department of Justice must convince the American people that a case brought by a Democratic administration and handled by a Democratic-appointed judge with a record of inflammatory statements about the former president will be heard by unbiased 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.
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