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Will Judge Cannon Give Trump a Favorable Jury?
Judge Cannon could use her power over jury selection to tilt the trial in Trump's favor.
ON TUESDAY, FEDERAL DISTRICT JUDGE Aileen Cannon launched the Florida trial for Donald Trump’s national security case on a “rocket docket,” setting the trial date on August 14. That date will likely not hold, but it might reassure those who have worried about her assignment to the case, concerned that she might, among other things, slow-walk it.
That reassurance won’t end the concerns, of course. Legal experts (among others) lost trust in Judge Cannon as a fair-minded jurist in September when, without plausible legal authority, she appointed a special master to review the classified documents the government seized in the court-authorized search of Mar-a-Lago the previous month. The Eleventh Circuit bluntly corrected her for treating a former president specially. Cannon’s trial date order suggests that she “got the memo” and may have learned a lesson.
Still, there are many ways Judge Cannon could still tilt the process in Trump’s favor, from evidentiary rulings to jury instructions. Atop the list of ways she could tip the scales of justice is in how she conducts jury selection. Her responsibility is to weed out individuals with unshakeable, pre-formed opinions of innocence or guilt. How she does that—or doesn’t, as the case may be—could determine the outcome of the trial.
Special Counsel Jack Smith took a risk by indicting Trump in Florida. He was limited in his choices, since the crimes alleged largely took place in Mar-a-Lago, but he chose not to bring indictments for illegal-seeming activity described in the Florida indictment that occurred in Washington, D.C., and New Jersey. Trial by a Florida jury would tend to favor Trump more than if the case had been brought in Washington, DC. In 2020, Trump carried the popular vote in all five of the counties from which jurors would be drawn if, as the New York Times reports, the trial is held in Ft. Pierce, Florida, where Judge Cannon presides. Hence, a trial there would likely begin with a majority of Trump voters. By contrast, in 2020 Trump lost D.C. by 87 points and New Jersey by 16 points.
THAT ALMOST EVERYONE STARTS with strong opinions about the defendant does not mean he or she cannot be a fair juror. The history of jury trials is full of examples of finding impartial juries despite massive pretrial publicity, from the treason trial of Aaron Burr in 1807, to the 1964 trial of Jack Ruby for killing Lee Harvey Oswald, to trials of celebrities such as Michael Jackson or Leona Helmsley, to trials of police officers for beating Rodney King or murdering George Floyd. In E. Jean Carroll’s civil trial against Trump in New York, one juror who was a fan of a right-wing podcast nonetheless joined the unanimous verdict and awarded $5 million in damages.
The prosecution has likely started drafting a jury questionnaire to ferret out jurors with open minds from those who have pre-judged Trump’s guilt or innocence. The political vote privilege allows potential jurors to refuse to disclose for whom they voted, but there are other ways to probe for conscious or unconscious bias. Prospective jurors should be asked where they get their news from, how much they know about the charges to be tried, and whether they are prepared to enforce the law even if it means convicting a former president.
The more a prospective juror has heard Trump’s “witch hunt” attacks on the Department of Justice and FBI, the more carefully they need to be probed for whether they tend to believe everything Trump says. They should be asked whether they have voiced any opinions about the indictments, and whether they agree the indictments are “politically” motivated.
Federal Rules stipulate that either counsel or the judge may question prospective jurors during the process known as “voir dire.” Judge Cannon is in charge and can be stingy, limiting questions to the boilerplate: “Despite any preconceptions, can you put them aside and decide the case solely upon the evidence?” She can take jurors at their word. Or she can permit follow-up questions. Only the latter course can possibly uncover biases of which a juror might not even be aware.
Unfortunately, in March 2022, the Supreme Court weakened voir dire by overruling an appellate court decision vacating the Boston Marathon bomber’s death sentence for inadequate questioning of prospective jurors. In effect, the Supreme Court limited a trial court’s duty in voir dire to “evaluat[ing] whether each prospective juror is to be believed when he says he has not formed an opinion about the case.”
Imagine the hypothetical questioning of a prospective Florida juror:
Q: “Where do you get your news?”
A: “Fox, Newsmax, and Truth Social.”
Q: “Have you ever attended a political rally?”
A: “Yes, I’ve attended two of President Trump’s.”
Q: “Have you heard about this case?”
A: “Yes, I’ve heard that there’s a double standard, and it seems like there is, but I probably need to learn more.”
Q: “Can you be fair in this trial to both sides?”
A: “I am pretty sure I can.”
Preposterous? Perhaps. But if not, would Judge Cannon accept that last answer, where another judge would not? The Supreme Court has said that the trial court’s broad discretion in selecting jurors is “not easily subject to appellate review.”
Such a juror, even if not excused “for cause,” is subject to a prosecutor’s six “peremptory challenges”—i.e., they can be excused without stating any reason. (The defense gets 10.)
One can imagine, however, depending on how the judge rules on requests to excuse jurors for cause, that prosecutors might exhaust their peremptory challenges faster in Florida than in other jurisdictions. After the prosecution and defense have made their closing arguments, it would take just one Trump true-believer on the jury to prevent a unanimous verdict by voting to acquit notwithstanding overwhelming evidence of culpability.
Donald Trump has dominated the airwaves with claims that he had the “right” under the Presidential Records Act to keep classified documents in his personal possession. Legal experts have called Trump’s claim “nonsense,” but he may have a purpose beyond fundraising and energizing his base as he pursues the Republican presidential nomination. His comments may also be aimed at grooming the jury pool to inoculate potential jurors against the inculpatory evidence and the legal instructions they will hear. If the jury acquits, the prosecution has no appeal.
WE SHOULD NOT FORGET that, however the Florida trial unfolds, there will be other trials of the former president; yet we should keep in mind that the criminal justice system is built for accountability to the law, not for resolving our political challenges or determining the direction of our government.
Whether and how we continue as a republic is up to the electorate, not 12 randomly selected jurors in the Southern District of Florida. Ordinary citizens who care about the freedoms we enjoy should recommit ourselves to doing whatever we can to ensure that a man who is bent on destroying the rule of law in America does not occupy the Oval Office again.
We dodged a bullet in 2020, but the fight to maintain American democracy isn’t over. There’s still a lot more work to do. Join us.