This used to be a thought experiment for law students: Is it possible to seat an impartial jury to pass judgment on a former president of the United States? The question is becoming less and less theoretical these days. From the FBI search of Trump's Mar-a-Lago estate in Florida that yielded troves of possibly mishandled classified material to the intensifying scrutiny into allegations of election fraud in Georgia and financial misdealings in New York: it's no longer unthinkable that in some court, some day, former President Trump could face a criminal charge.
That would present a singular challenge, given that the U.S. Constitution guarantees every defendant the right to be tried by a jury of their peers. "It would be the ultimate stress test for the American judicial system," says Craig Trocino, director of the Miami Law Innocence Clinic and a former public defender. Agrees Cornell Law Professor Valerie Hans: "In a way, the Founders envisioned the possibility of this kind of event and envisioned the jury as a protection for that defendant."
But who, exactly, could claim to be a "peer" of a wealthy one-time leader of the free world? And who in America—or anywhere else, for that matter—could claim to lack an opinion about someone whose every utterance and action has been daily front-page news for seven years? Could all 160 million Americans who expressed an opinion by voting in the 2020 presidential election be disqualified, and, if so, who would be left?
It's uncharted territory even for a nation accustomed to high-profile courtroom spectacles. "Seating a jury for a Trump case is going to be really much harder to do than almost any case because, as you know, everything has been so polarized, people have very strong opinions on either side about him," jury consultant Richard Gabriel says. Gabriel worked for the defense teams that won acquittals in the murder trials of O.J. Simpson and Casey Anthony and advised the Justice Department in selecting the jury that convicted ex-Detroit Mayor Kwame Kilpatrick on mail and wire fraud in 2013.
"There's a lot of people who are gonna think, 'Yep, he did it, I'm done already.' And there's other people who think he's being prosecuted for political reasons," Gabriel says. "What you do is, you look for people who are aware of their own biases and you find middle-ground people. They do exist. Some people, they just live their lives and don't have strong political opinions."
Potential jurors could be subjected to deeply personal interviews in the part of the process known as voir dire; it would likely include a screening questionnaire aimed at weeding out obvious, overt partisans. But a presiding judge also would have to decide what's OK to ask about: questions about how someone voted in 2020 or 2016 may not be permitted but general feelings about the political parties, Trump, and his presidency could be fair game, experts say. Teams of jury consultants on both sides would be combing each potential juror's social media postings and political donation history, too. "Anything that's public, you can look at, but you can't be invasive: you can't 'friend' somebody or follow somebody because that would be inadvertent contact with a juror, which could be construed as jury tampering," Gabriel says.
The voir dire for the 2021 trial of Kyle Rittenhouse, the Illinois teen acquitted of murder in the shooting deaths of two men at a Black Lives Matter rally in Kenosha, Wisconsin, shows how judges try to walk the tightrope of what's allowed. The judge in that case refused to let lawyers probe jurors about their views on many political issues that surrounded that case. "It was actually a fairly bland voir dire where we couldn't ask politics, we couldn't ask anything related to George Floyd or Black Lives Matter or the Proud Boys," says Jo-Ellan Dimitrius, who advised the Rittenhouse team on jury selection and worked for O.J. Simpson on his murder trial. "We could ask people where they were at the time that the riots occurred. We could ask general opinions about law enforcement and about gun ownership. And that was it. That was absolutely it."
Questions about personal politics may be allowed when the defendant is an elected official, says Gabriel. But the answers might not be that illuminating. "There's a lot of people who voted for Trump who don't like what he did," he says. "A judge would probably want to curtail this somewhat, because they don't want to have a three-month-long jury selection process. It's going to be a nightmare for whatever judge has to try this case because you're going to call thousands of people to try and find those 12."
Professor Hans is optimistic that such potential jurors exist: she can point to one, at least. Former Trump campaign chairman Paul Manafort was convicted in 2018 on eight counts of financial fraud in Alexandria, Virginia. After that verdict, a juror who described herself as an ardent Trump fan told Fox News she voted to convict because of the evidence. "I did not want Paul Manafort to be guilty," said the juror, Paula Duncan, "but he was, and no one's above the law."
"That was a great line," Hans says. "It proves that most people take jury duty very seriously and set aside their personal views to focus on the evidence."
(On the other hand, Duncan also said Manafort would've been convicted on the 10 additional counts he faced except for a lone holdout on the jury who, despite the "overwhelming" evidence against Manafort, "still said she had a reasonable doubt.")
The location of a Trump trial could affect how hard it would be to seat an impartial jury. If the Department of Justice indicts him for taking classified records home with him, for example, that case would likely be filed in Washington D.C., where the alleged crime would have taken place. Trump and his lawyers could argue that the jury pool is tainted by a population that is overwhelmingly Democratic and is also a workforce closely tied to the federal government over which Trump once presided. Trump's team would likely commission a study of public opinion in the area where Trump would stand trial, and Dimitrius believes he'd have a strong case for a change of venue from Washington, where Joe Biden took 92.1 percent to Trump's 5.4 percent of the vote in 2020. "The remedy the judge sometimes comes up with is to bring in jurors from another venue," she says. "Maybe they bring in jurists from Virginia to supplement who is there."
But the jury pool in Maryland or northern Virginia—also Democratic bastions—might not be much of an improvement. "At the end of the day, I don't think you're going to find a venue that's better," says John Anderson, a former federal prosecutor in New Mexico. "There's no place in America where people don't watch the news or read the newspaper or have strong feelings about the former president one way or another."
Those strong views point to the need for a supersized pool of alternate jurors. A typical trial features just a couple of alternates, but the circus that would engulf a Trump trial would require perhaps two dozen or more, Trocino says, because activists on both sides would be hard at work trying to unearth proof of bias that eluded voir dire. A politically charged text exchange revealed by a relative or a "like" of an offensive meme found deep in someone's Facebook history could throw the proceedings into chaos if there aren't sufficient replacement jurors on tap.
The prosecution of an ex-president would be novel to Americans but it's not infrequent in other democratic countries. In the past decade, Italy's ex-Prime Minister Silvio Berlusconi was convicted of paying underage girls for sex; France's ex-President Nicolas Sarkozi and ex-Prime Minister François Fillon were convicted of various corruption charges; and South Africa's ex-President Jacob Zuma is in prison for failing to participate in an inquiry into corruption. Israel's ex-Prime Minister Benjamin Netanyahu currently is in the middle of a fraud and bribery trial and Portugal's ex-Prime Minister José Sócrates faces charges of falsifying documents and money laundering.
In those kinds of cases in those countries, however, a judge or panel of judges decides the defendant's fate—not a group of average citizens who happen to live in the court's vicinity. America's jury system would make a Trump trial even more of an international fascination.
"When I first was working on the O.J. case, I got calls all the time from Sweden, Japan, and all these different places going, 'What is this thing you call the jury system?'" Gabriel says. "We are very unique in how we've formulated our system. They look at all of our high-profile trials and think we're just crazy Americans."
It's even possible that the presence of a jury might help the public see a Trump trial as fair. "The jury is not part of the government," says Hans. "The charges are brought by the government, but it requires a jury to make a decision. The jury can protect a defendant from an overreaching prosecution and overreaching government. You've got to get an unanimous group of individuals to say the claims are supported by the evidence."
Correction 8/26/2022, 7:32 p.m. ET: This article was updated to correct the spelling of Craig Trocino's last name, Nicolas Sarkozy's first name, and Jacob Zuma's first name.
