WASHINGTON – Donald Trump and his legal team face long odds in their bid to move his 2020 election conspiracy trial out of Washington, arguing the Republican can't possibly get a fair trial in the overwhelmingly Democratic nation's capital.
Criminal defendants routinely try to have their cases moved to increase their chances of getting a favorable jury. Trump and his attorney say they're eyeing West Virginia, which Trump easily won in 2020.
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But there's a notoriously high bar for proving the jury pool is so biased or tainted by pretrial publicity that the trial must be moved. Such efforts have failed in some of the most high-profile American trials in recent memory. And judges appointed by presidents of both political parties in Washington's federal court — including the judge overseeing Trump's trial — have repeatedly rejected similar attempts by many of the more than 1,000 Trump supporters charged in the Jan. 6, 2021, riot at the U.S. Capitol.
“Jurors’ political leanings are not, by themselves, evidence that those jurors cannot fairly and impartially consider the evidence presented and apply the law as instructed by the court,” U.S. District Judge Tanya Chutkan, the judge appointed to Trump's case, wrote last year in denying one Jan. 6 defendant's bid to change venue.
Trump's defense team has yet to formally make such a request in the case accusing Trump of conspiring with allies to overturn his 2020 presidential election defeat. But Trump’s lawyer, John Lauro, said on CBS News on Sunday that it “absolutely” plans to do so.
“The president, like everyone sitting in this room, is entitled to a fair trial, and we’re going to get that," Lauro said.
Trump faces charges including conspiracy to defraud the U.S. and obstruction of Congress in the first case that seeks to hold the former president criminally responsible for his efforts to cling to power after he lost to Democrat Joe Biden. He has denied any wrongdoing, and he claims that special counsel Jack Smith is targeting him in an effort to hurt his 2024 campaign.
If Trump's case stays in Washington, his trial will take place less than a mile (1.6 kilometers) from where the Capitol was attacked on Jan. 6 by an angry mob whipped up by his election lies and intent on stopping the certification of Biden's electoral victory. The courthouse, which has a view of the Capitol dome from its windows, has already been the site of several high-profile Jan. 6 trials, including the seditious conspiracy cases against leaders of the Proud Boys and the Oath Keepers extremist groups.
Even in some of the most intensely publicized and politically charged cases in U.S. history, judges have ruled that fair and impartial jurors can be found — with proper questioning — in the communities where the alleged crimes occurred.
Boston Marathon bomber Dzhokhar Tsarnaev was tried about 2 miles (3.2 kilometers) from where he and his brother placed bombs near the finish line. Zacharias Moussaoui, the only man convicted in a U.S. court for a role in the Sept. 11 attacks, was tried in Virginia, not far from the Pentagon. Those charged in the Watergate scandal were tried in Washington.
One of the rare federal defendants who had a trial relocated was Oklahoma City bomber Timothy McVeigh. The trial was moved to Colorado after the judge ruled it was impossible for McVeigh to get a fair trial anywhere in Oklahoma. He was ultimately put to death in 2001 for the bombing, which killed 168 people and injured hundreds more.
Changes of venue can make sense in cases that are particularly notorious in a community, but Trump’s fame or infamy is hardly limited to the District of Columbia, said Vida Johnson, a Georgetown University law professor who previously worked as a public defender in D.C. Superior Court.
“There’s just no real basis for it,” she said of Trump's suggestions to move the trial. “You’re looking for an unbiased jury, but he’s just as well known in any place.”
A slew of Jan. 6 rioters who have unsuccessfully tried to get their cases relocated have claimed they can't get a fair trial in a district where 92% of voters cast ballots for Biden in 2020. In trying to make the case his trial should be moved to Virginia, a lawyer for an Oath Keepers associate claimed that D.C. residents “have shown that their powers of intelligent, rational thinking are suspended when Trump is involved.”
Chutkan — an appointee of President Barack Obama who has a reputation for being one of the toughest punishers of Jan. 6 defendants — last year rejected claims by Capitol riot defendant Russell Dean Alford that an impartial jury can’t be empaneled in Washington. Careful questioning of prospective jurors can root out any biases, Chutkan said, citing a 1976 ruling that found no basis for moving a Watergate-related case out of Washington.
Even so, Chutkan agreed to send a written questionnaire to prospective jurors before Alford's trial to “screen for prejudice." On the first day of his trial, Alford's lawyers again pressed to move the proceedings elsewhere, citing the jury pool's answers to the questionnaire. But Chutkan said there’s no evidence "people wouldn’t have equally strong views” in another district.
"What we’re looking for is not people without opinions," she said. “What we’re looking for is people who are able to put aside their opinion and focus their decision solely on the evidence presented in this courtroom.”
In the Justice Department's massive prosecution of the Jan. 6 attack, only two defendants so far have been fully acquitted of all charges. And those were bench trials decided by judges, not juries.
But prosecutors don’t have an unblemished trial record. Juries or judges have acquitted at least 39 riot defendants of one or more charges, according to an Associated Press review of court records. In one of the most high-profile Jan. 6 trials yet — against Oath Keepers founder Stewart Rhodes and associates — only two of five defendants were convicted of seditious conspiracy, even though all were found guilty of serious charges.
Johnson, who tried dozens of cases in front of D.C. juries, said the high number of well-educated jurors with college degrees and advanced degrees in Washington can actually help defendants.
“I think you’re more likely to find jurors that actually really understand the legal concepts that would benefit a defendant in a criminal trial, like the burden of proof, the concept of reasonable doubt," she said. “So I actually think that, in some ways, this is a better place for a defendant to get a fair trial.”
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Richer reported from Boston.