Discussion of the Justice Department’s indictment of former president Donald Trump has mostly focused on the legal and political merits of the charges. This misses the reality of what happens in a criminal trial. The case will come down to one thing: jury selection.
In the United States, prospective jurors go through a rigorous screening process called voir dire, during which they answer both written and oral questions about their background, knowledge of the case and people involved, and other issues. The prosecution or defense can request that the court strike jurors from the panel for cause—if, for example, one says that he couldn’t be impartial regarding Trump or is personal friends with the prosecutor. Even after the number of potential jurors has been whittled down with “for cause” strikes, each side gets to remove an additional number with “peremptory strikes,” which allow exclusion for any reason (provided it is not based on a constitutionally restricted ground, like race). After all these strikes, a final jury of 12 people plus alternates is seated to hear the case.
This procedure is fairly straightforward in most cases. But in United States v. Donald Trump, jury selection is going to be tricky for both prosecution and defense. Trump’s high profile, the strong feelings he engenders, and the political sensitivity of the case mean that picking jurors will be like navigating a minefield.
Trump once famously stated, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.” He continues to enjoy great loyalty and influence among some parts of the electorate. If such voters wouldn’t change their minds about Trump based on shooting somebody, they are unlikely to convict him based on failing to return confidential documents. Some might recall that rival politicians, such as Joe Biden, Mike Pence, and Hillary Clinton, were not prosecuted for similar offenses. The prosecution will seek to find those potential Trump-can-do-no-wrong jurors and strike them from the panel.
On the other side of the aisle, many voters loathe the former president. Regular consumers of, say, MSNBC or CNN, or readers of the Washington Post or other progressive media outlets, would have little problem convicting Trump of any technical violation of the law, as they have believed for the last eight years that he is a potent threat to democracy. Trump’s lawyers will be desperate to keep any such Trump-is-evil-incarnate jurors from making it to the final 12.
The problem is that both types of potential jurors know exactly the role that they could play in deliberating on Trump’s fate, and they may be tempted to hide their true positions during voir dire. In death penalty cases, experienced prosecutors know that it is not unheard of for jurors adamantly opposed to the death penalty to try to get on the jury by moderating their responses during the jury selection process, exposing their true beliefs only when it comes time to vote on a verdict. Pro-Trump and anti-Trump prospective jurors may have the same inclination to disguise their actual views in order to make sure that their voice gets heard come decision time.
That the trial will unfold in the Southern District of Florida deepens the challenge. That district runs from Ft. Pierce through Miami to the southern tip of the Florida Keys, and includes remarkable social, economic, and ethnic diversity. Jurors from Broward County (64 percent for Biden in 2020) will be mixing with jurors from Martin County (62 percent for Trump). The always-unpredictable residents of the Conch Republic in the Keys will be represented, as will the glitz and glamor of Miami and South Beach.
In the American criminal-justice system, votes for conviction must be unanimous. If only one resolutely pro-Trump or anti-Trump juror slips onto the final jury panel, gaining unanimity may be close to impossible. A jury that can’t reach a unanimous decision is known, of course, as a “hung jury.” A jury hell-bent on conviction is known as a “hanging jury.” Which kind of jury will be selected for the trial of the first former president to be indicted by the United States? Nothing should surprise Americans at this point.