With the indictment of former President Donald Trump, the U.S. justice system is putting teeth behind the idea that no one in a democracy is above the law. As this case winds its way through the court system, the weeks and months ahead will be contentious. There is no denying the unique circumstances, logistics, pressures, and scrutiny associated with indicting a former president. One of the judiciary’s early challenges will be maintaining Trump’s Sixth Amendment right to an impartial jury to dispense impartial justice. Federal and state courts frequently confront high-profile and politically sensitive cases against elected officials, and the U.S. judiciary’s procedures and legal standards were designed to meet this moment.
The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” While it will be practically impossible to find a juror who is entirely unaware of who Trump is and has not been exposed to at least some media detailing the allegations against him, the Supreme Court has made clear that an impartial jury protected by the Sixth Amendment “does not require ignorance.” What is required, is that the jurors themselves are unbiased, meaning that they are willing to decide the case on the basis of the evidence presented rather than on the basis of outside influences. Impermissible outside influences include both attempts at witness tampering and juror animus, such as in Pena-Rodriguez v. Colorado where the Supreme Court threw out a criminal conviction after two jurors made clear statements indicating that racial animus was used to convict a criminal defendant.
In high profile and emotionally charged cases, the prosecution and defense will go through a lengthy process, where prospective jurors are questioned about their background and potential biases before being chosen to sit on a jury. If questions of bias arise after a jury has been empaneled, a trial judge can conduct a hearing, in which the defense participates, to determine if impartiality has been undermined. In October 2022, it took a New York court just three days to seat a jury in the tax fraud case against the Trump Organization, proving that an impartial jury in a Trump case can not only be found, but can be seated in a reasonable period of time.
There is no reason to doubt that the judiciary will be able to do the same thing with this new indictment against Trump. The U.S. legal system has effective processes in place at the state and federal levels to select impartial juries and ensure the safety of jury members, all while maintaining a defendant’s Sixth Amendment right to an impartial jury. The judiciary has tools at its disposal to protect members of the jury against harassment and ensure their security, which may include taking steps such as a full sequestration, partial-sequestration, and anonymous juries. The judiciary has successfully navigated these issues in the past, including in the high-profile 1992 case of organized crime boss Joe Gotti. Recognizing the unique security needs presented by charging a leader of the mafia, the trial against Gotti was actually the first time a Brooklyn courthouse had a fully sequestered and anonymous jury. Not only were the jurors separated from their families for the duration of the three-month trial by staying in hotels whose location are kept secret, but their identities were also kept secret from litigants and the public. These actions demonstrate that it is possible to both ensure a defendant maintains their Sixth Amendment rights and that the safety and wellbeing of members of the jury is protected.
While prosecuting a former president of the United States is unprecedented, other democracies have prosecuted former heads of state for criminal misconduct before. Several countries that rank higher than the United States in political rights and civil liberties, including France, Italy, Israel, the Philippines, South Africa, and South Korea have all charged, and in many cases convicted, former presidents and prime ministers for crimes committed while they were in office. In each of these circumstances, prosecutors with significantly more independence than that afforded by our justice system, such as prosecutors in France and Italy who are part of the judiciary rather than part of the executive branch, brought credible charges against elected leaders.. In so doing, they demonstrated that political leaders are no different from ordinary citizens when it comes to being held accountable under the law.
South Korea’s experience is instructive. In 2016 and 2017, thousands of mostly peaceful protestors took to the streets calling for the removal of South Korean President Park Guen-hye in response to corruption allegations. Shortly after Park was impeached by the National Assembly for illegal influence peddling, the Constitutional Court upheld her impeachment in a unanimous 8-0 ruling. Their decision was broadcast live by media outlets given the country’s intense interest in the outcome. In a sign of South Korea’s democratic resilience, the country’s snap elections in May 2017 to replace Park resulted in a peaceful transition of presidential power and societal acceptance of her 2018 criminal convictions for bribery and coercion.
The American legal system was built to dispense equal justice under the law. We expect that seating an impartial jury will take time and likely raise novel legal issues that will need to be worked out in the courts. But given the overwhelming evidence of criminality against Trump, including the 56 potential criminal violations related to his campaign and presidency that our organization, Citizens for Responsibility and Ethics in Washington has identified, working through these issues and ensuring that Trump receives a fair trial while maintaining his Sixth Amendment rights is a necessary step on the path toward accountability.
While results have not always been perfect, the U.S. system has proven that justice can be dispensed fairly against elected officials and other high-profile defendants. There is no reason to doubt its ability to do that again here, beginning with selecting an impartial jury to adjudge Trump’s guilt.
IMAGE: Former President Donald Trump arrives for an arraignment hearing at NYS Supreme Court on April 04, 2023 in New York City. (Photo by Michael M. Santiago/Getty Images)
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