Editor’s note: Norman Eisen is a CNN legal analyst and editor of .Trying Trump: A guide to his first election interference criminal trial” He served as counsel to the House Judiciary Committee during Donald Trump’s first impeachment and trial. The views expressed in this commentary are his own.read more opinions On CNN.
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Jury selection begins on Monday, with questions raised over the defense of former President Donald Trump in his hush-money payments trial. He keeps filing motions that are sure to lose, and if he loses, he may file again. Some have suggested that he may be trying to use the trial to cultivate a narrative of discontent in order to boost his political standing among his supporters nationally, and that is certainly the case.
But as the author of a new book analyzing the case, he has tried to reach out to supporters in Manhattan in the hopes that at least one person will be selected to serve on the jury and then steadfastly refuse to convict. It looks like there is. strength of evidence. (Mr. Trump denies all wrongdoing.) Judge Juan Machan’s highly detailed jury questionnaire, just released, shows the justices are wary of Mr. Trump’s maneuvers, but That doesn’t mean the former president won’t continue the trial if this is Trump’s strategy. .
Jury nullification is when a jury completely ignores the evidence and the law and bases its decision on other reasons, such as bias, and this can happen for a variety of reasons. When I was a criminal defense attorney in Washington, D.C., in the 1990s, this phenomenon received a lot of attention because some jurors were fed up with the drug war and related police tactics. No matter how overwhelming the evidence was, prosecutors determined they would choose a jury that would not follow the law. Since criminal juries must be unanimous, the presence of even one such juror is sufficient to prevent a guilty verdict.
Dozens of times in my book, I detail the arguments that Mr. Trump would clearly lose in a hush-money lawsuit, but this is a pattern that supports the kind of reasoning he would seek. Jury nullification strategy. The latest example: He’s trying to get a judge to recuse himself based on flimsy allegations of conflict of interest because his adult daughter works for a company that does business with Democratic candidates. As a former White House ethics leader, I know that the occupation of an adult child who is neither party nor witness to a case does not give rise to a conflict under New York state law.
What makes this even more questionable is that Trump has previously introduced this motion and defeated it. In fact, as part of its preliminary review, the state Judicial Commission on Ethics said there was nothing to it.
Nevertheless, Trump insists that the facts have changed, and that he is now the presumptive Republican nominee, and that Democrats, including the judge’s daughter, her firm, and its clients, are likely Trump’s He filed suit again, arguing that he would benefit from prosecution. But none of that changes anything substantively regarding Marchan’s false claim that he has a conflict. Because, as a matter of law, we don’t hold judges responsible for the outdoor activities of adult children. I believe it is fair to conclude that it is clear that Trump is up to something other than winning these motions, and that tainting the jury pool is part of that.
Here’s how it works: Step 1: No matter how ridiculous it is, bring it to court. What matters is the fight itself, not the victory. In another recent example, President Trump pushed the limits of a gag order that a judge had already imposed. Although he lost when a gag order was extended to stop his shenanigans, he got a huge amount of ink from this fight. He has also just failed again in his efforts to assert his absolute immunity, despite having previously sued and lost on this issue. And now he is repeating his fateful distaste for pretrial publicity as a basis for delaying the trial. Instead, that effort was simply rejected.
Step 2: Hold a hearing to generate even more intense coverage in the heart of New York City, and have President Trump appear in the courtroom of the most high-profile clashes to garner even more attention and ensure that the clashes dominate. do. Headlines for several days before and after the hearing itself.
So did President Trump’s efforts to delay the trial last month after federal prosecutors produced tens of thousands of documents at the last minute in response to Trump’s subpoenas. At the actual hearing, his attorneys were unable to identify a single useful citation supporting the delay. Some wondered why he would go to the trouble of doing so, which makes sense if the purpose was to anger jurors who might support Trump.
Step 3: Hold a Trump press conference to ensure that the jury nullification advertisement reaches as wide a range of jurors as possible. After court appearances in hush-money cases, he often holds press conferences at his building at 40 Wall Street, where he speaks to prosecutors, judges, witnesses, and others he claims are after him. slam the entire system.
Of course, we cannot be sure that this is what President Trump intends. He and his lawyers will never admit it. Preemptively influencing jurors to violate their oath to uphold the law would hardly be welcomed by the tough judge in this case.
Fortunately, judges don’t have to wait for a confession to address President Trump’s tsunami of fruitless motions and the high profile among prospective jurors. He began an effort to remedy that threat in the form of a very thorough written jury questionnaire. All potential jurors must complete this document before being questioned in court.
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The document includes direct questions to probe potential bias, including whether potential jurors are “fair and impartial.” It also reveals influence inferences, such as whether potential jurors attended Trump rallies and where they get their news. A wide range of surveys is likely to be effective. It’s one thing to hold a grudge on President Trump’s behalf; it’s quite another to outright lie about it.
Similar scrutiny can be expected at Voile d’Ire, with individual questions for each juror who has passed a rigorous questionnaire. It may take some time, but given the risk of a jury nullification movement, it’s worth paying attention to.
In addition to ordering follow-up questions to be submitted to jurors, Marchan is seeking to stem the tide of Trump’s baseless motions, requiring parties to seek permission before filing motions. Going forward, he should raise the bar even further by initiating sanctions for frivolous arguments against Trump and his lawyers. Lawyers for the former president and several of his associates have been sanctioned in previous lawsuits for their frivolous actions against his political opponents and, of course, for pushing President Trump’s lies in the 2020 election. Their moment was here.
The evidence shows that President Trump’s call for jury nullification is not a sign of strength. On the contrary, as I argue in his book, Trump is in a weak position. He is at great risk of being convicted and imprisoned, and he knows it. It is reflected in his desperate behavioral strategies, whatever the explanation.
