It is not the federal government that will hold Donald Trump’s future in its hands. It will be 12 jury members in his eventual trial.
Trump appears in federal court on June 13, 2023, for his arraignment and the formal presentation of the charges lodged against him in a 37-count indictment released on June 9, 2023.
Trump’s defenders have alleged that the indictment is a politically motivated “witch hunt” by the Biden administration and that any conviction would thus be discredited.
But like all federal defendants, Trump will be protected by the Sixth Amendment’s right to a jury trial. That right, to have a jury of 12 citizens render judgment on his case, protects Trump from the government’s overstepping citizens’ limits on its power – a dynamic that is often lost in the political sound and fury over his state and federal indictments.
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‘In the hands of the governed’
Sourced to the Magna Carta, the 13th-century charter of rights, jury trials have become a feature in all countries that share the British legal tradition, shielding citizens from unlimited prosecutorial power.
As the shrewd observer Alexis de Tocqueville remarked in 1835, juries “place the real direction of society in the hands of the governed [because] he who punishes the criminal … is the real master of society.”
Supreme Court Justice Lewis Powell observed in 1966 that juries are especially significant in the trial of crimes against the state such as treason and sedition, which therefore can be considered political – and perhaps more open to prosecutorial abuse.
“It was just such abuses that caused our English and American forebears to prize trial by jury so highly,” Powell said.
And Thomas Jefferson wrote that he “consider[ed] trial by jury as the only anchor even yet imagined by man, by which a government can be held to the principles of its constitution.”
In federal court in criminal prosecutions, such as Trump’s, a 12-member jury is a matter of right, and that jury must reach a unanimous verdict to convict.
Serious scrutiny
The jury pool in federal cases is randomly drawn from registered voters and people with driver’s licenses who live in the district.
The process called “voir dire” allows defense attorneys to request that the judge reject certain potential jurors for cause – on grounds of some demonstrated issue of bias, such as when questioning of a juror reveals strong prejudice for or against a defendant. In Trump’s case, jurors’ political affiliations, and the depth of their partisan commitments, may be relevant and permissible grounds for questioning at the trial court’s discretion.
Even potential jurors’ social media accounts may be investigated to expose their political views. Voir dire also allows defense attorneys to reject – in legal parlance, to “strike” – up to 10 jurors for no cause at all.
Federal rules allow up to six alternative jurors in the event one is dismissed by the judge for improper behavior, such as violating the judge’s instructions regarding access to media or discussing the case with people outside of court.
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High profile, high pressure
If he chooses to go to trial, Donald Trump will face a jury of his peers carefully scrutinized by his defense attorneys for potential bias, who may be replaced in the event they misbehave. Like all criminal defendants, Trump will enjoy the protection that the jury will offer him from abuse by the government’s prosecutors.
Of course, jurors in high-profile cases such as United States v. Trump face pretrial exposure to extensive media coverage. But this is nothing new.
Early in the history of the republic, Vice President Aaron Burr stood trial for treason on grounds that he had fomented a military effort to separate the Louisiana Territory from the United States. After he resigned from the vice presidency during Jefferson’s last term in office, Burr traveled the country gathering collaborators in his plot to separate the western territories from the union.
Burr’s trial in Richmond, Virginia, was presided over by U.S. Chief Justice John Marshall and became a cause célèbre, with widespread and detailed coverage in newspapers in Virginia.
Marshall struggled with the effect of pretrial publicity on the jury but ultimately concluded that finding a jury without any such exposure would be impossible and thus not required. Burr was ultimately acquitted.
Jurors themselves, however, may face more significant personal difficulties in discharging their duties, including significant pressure associated with public scrutiny. Jurors in the high-profile case involving Rodney King, for example, experienced threats and disturbing phone calls when their names became public.
Jurors may also experience post-traumatic stress disorders and other stress-related health issues following high-profile trials or trials entailing disturbing evidence.
For these reasons, the jurors in the Trump trial may be protected by anonymity, if the presiding judge orders it. There was such an order in the E. Jean Carroll case against Trump in New York.
How Judge Aileen Cannon – twice reversed by a higher court for Trump-friendly rulings – will approach the issue of juror anonymity is unclear.
Given the agitation among Trump’s supporters, the high-stakes nature of the case, and the importance of protecting the jurors – who wield such power in the judicial system – I believe such an order is necessary.
