Why it’s impossible for Trump to get a fair jury

A convenient way to define bias in a juror is to ask, “Do you have a personal motivation to convict or acquit the defendant?” Jurors who have an actual interest in the outcome of a trial are, by law, required to be struck from a jury pool. Legally, this isn’t a high bar. Any personal interest in the outcome of the case is disqualifying. 

This is precisely why — no matter how many hundreds of prospective jurors are questioned, what news sources they read, where they live, where they work or how many times they promise to be fair — Donald Trump, the presumptive Republican nominee for president, cannot get a fair jury. 

It is preposterous to suggest that any American citizen called as a prospective juror could be “unbiased” when it comes to Trump — the presidential leading candidate, according to polls — mere months away from the election. It is indisputable that the lives of all Americans will be affected by whoever is elected as the next president. According to the polling, if Trump were convicted in the Manhattan hush money case, his chances of winning the election would go down. 

The acquittal or conviction of Trump in this trial will directly affect his electoral chances in the upcoming election. Democrats feign shock at the suggestion that the prosecution is politically motivated, suggesting instead that this case is a vital prosecution to demonstrate that “nobody is above the law.” But they’re just playing coy. The case — which has been repeatedly passed over by the FEC, federal prosecutors and even the Manhattan DA’s office itself — has almost nothing to do with enforcing the law. Based on the indictment alone, it’s not even clear what law Trump allegedly violated. Yet Democrats suddenly care so much about a decade-old misdemeanor? It doesn’t take much to do the math on that one. 

Judge Juan Merchan issued a memorandum in advance of jury selection outlining 42 questions that the attorneys were authorized to ask prospective jurors. His intent, it seems, was to limit inquiry into the explicit political preferences of the jurors and their past voting history. The questionnaire, though, in its attempt to strategically excise “politics,” blatantly prohibits the only question that matters at all — who do you want to be our next president? Only three meaningful answers exist: Trump, Biden or “I don’t care.” Each answer presents an inextricable bias that no amount of promises to be fair and impartial can override. 

One’s first instinct might be to suggest that the court should seat only those jurors who don’t care who is elected as the next president. But this, too, would result in an unconstitutional jury. By seating only those who have no opinion, you disenfranchise the involvement of all those reasonable people who do care about national politics — no longer a jury of one’s peers but a jury of the outliers. 

Then there’s those who do have a preference. By definition they are biased, because they have a direct and tangible interest in the outcome of the case, knowing that their verdict will sway the election for or against their candidate of choice. 

We are, in fact, in the throes of a logical conundrum. All the prospective jurors are American citizens living in America. Of course they have an opinion as to the direction the country is taken. Their lives will undoubtedly be affected by the next presidential election — yet we’re to believe there are jurors who can both care about this country’s future and simultaneously set such concerns aside as they determine the guilt or innocence of Donald Trump?

To hold this trial in the lead up to a presidential election is, by definition, election interference. The outcome will affect the election and the jurors deciding the case — whether they admit it or not — have an interest in its outcome, one way or the other, that is unconnected to the evidence presented in court.

Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are both military veterans, former federal prosecutors and current criminal defense attorneys. As co-owners of the civil rights law firm Golden Law Inc., they focus their legal practice on federal felony trial defense and appellate representation and other civil rights-related issues.