The jury system is one of our treasured Anglo-American rights. Adding common people to the judicial fact-finding process ensures that state actors do not have all the power, that the sense of the community can be expressed, and that final judgments have some legitimacy because of the infusion of a democratic sensibility into the priest-like judicial function.
Since the time of the Magna Carta, a jury is described as being of one’s peers. In other words, people from one’s community, one’s neighbors. It is supposed to represent “common sense.”
One of the grievances listed in the Declaration of Independence against Great Britain was “depriving us in many cases, of the benefits of Trial by Jury” and “transporting us beyond Seas to be tried for pretended offences.” Laws then permitted a variety of offenses against the King’s property to be tried in England, sometimes before military courts, without the benefit of a jury.
The idea that juries should not be overly alien from the defendant is something with which we are all familiar. In the military, for instance, enlisted defendants can request that one third of the panel (which functions like a jury) be made up of other enlisted men, on the theory that the officers are likely to be harsher, more socially distant, and possibly more disposed to respond to command influence.
In civil trials, both sides have substantial influence on the jury, in the form of strikes for cause and peremptory strikes. These are both designed to ensure a fair-minded jury, whose ultimate judgment either side can live with.
A common criticism of yesteryear’s juries, particularly in the South, is the conviction of a black defendant by an “all-white jury”; there is a widespread feeling (and some evidence) that the absence of a defendant’s racial cohort on the jury undermines the legitimacy of a conviction in a racially mixed community.
The Supreme Court, while not requiring racially representative juries, did forbid peremptory strikes based solely on race in the 1986 case of Batson v. Kentucky. There, the Court said, “For a jury to perform its intended function as a check on official power, it must be a body drawn from the community.”
Quoting Blackstone, the Court added, “By compromising the representative quality of the jury, discriminatory selection procedures make ‘juries ready weapons for officials to oppress those accused individuals who by chance are numbered among unpopular or inarticulate minorities.’”
Destroying Trump and his supporters has become the raison d’etre of the Democrats under Joe Biden, as evidenced by his creepy call to arms against “MAGA Republicans” in Philadelphia. Even before this speech, Trump and his associates had been subject to an unprecedented level of harassment, culminating in the execution of a search warrant against Trump at his Florida home.
The search originated, as did much other chicanery, in the FBI’s Washington, D.C. field office. This is where the earlier Russiagate witch hunt began, as well as harassment of Trump’s associates and lawyers. The current head of the office, Steven M. D’Antuono, was previously head of the Detroit field office which invented and sustained the Governor Whitmer kidnapping plot.
It is possible, likely even, that the government will attempt to bring any charges against Trump in Washington, D.C.. After all, it appears to have the most compliant and ideological FBI field office. Also, the investigation arises from a dispute with the National Archives located in D.C.; this at least provides a plausible basis with which the government will try to justify bringing charges there.
The aggressive actions of the Department of Justice are themselves ominous, but there would ordinarily be a check on this in the form of an independent judiciary and a jury made up of the defendant’s peers. Neither of these checks on government power is assured in a D.C. prosecution.
As a prelude, the D.C. judiciary has been harsh and censorious in its treatment of January 6 defendants, in some cases invoking their political views as proof of their bad character and justification for additional punishment. The few jury trials of defendants have all resulted in conviction.
It would be fairly easy, for Trump or any of his supporters, to face a jury made up exclusively of Biden voters because of D.C.’s lopsided Democratic partisanship. Ordinary Republicans are a minority in the District. Trump supporters are an even tinier minority. Ensuring a few local Republicans are on the jury will not guarantee reasonable treatment for Trump. Many of these nominal Republicans share the ethos of the “NeverTrump” movement and the broader managerial class’ contempt for Trump. Thus, the jury would perform none of its ordinary functions if Trump were hauled into Court there.
The social and political distance between D.C. and Trump Country could not be larger. Even the immediate environs of Maryland and Virginia have more diverse politics than D.C. In 2020, 92.1 percent of Washingtonians voted for Joe Biden; only 5.4 percent voted for Trump. This is the most lopsided ratio of votes in the country. In a town where the business is government, Trump’s stated ambition to “drain the swamp” is a threat to the livelihoods and an affront to the values of its citizens.
There are alternatives. Florida, where Trump lives, is a true bellwether, with a nearly 50/50 divided electorate. It is not merely split politically, but it represents the sense of different regions of the country. A Florida jury would ensure that a variety of views are represented, because it lacks the ideological and economic uniformity of D.C.. But if the government pursues a prosecution, there is little chance this alternative will be used because of the Biden Administration’s maniacal focus on stopping Trump.
If Trump is prosecuted and hauled into D.C. to defend himself, a conviction is practically guaranteed. The prosecution itself, along with the earlier search of his home, is a big enough affront to constitutional norms. Trying him in D.C. will render the proceedings a farce, an insult and an act of violence, the result of which deserves no respect from any American.