Trump faces uphill battle in moving case from DC

Legal experts have cast doubts that former President Trump and his legal team will succeed in attempting to move his case on Jan. 6 charges out of Washington, D.C., especially before jury selection is even conducted.

Trump has floated the idea of moving his case to nearby West Virginia in the hopes he might face a more politically friendly crowd in a state he won in 2020 by more than 38 points.

But judges have previously denied more than a dozen other Jan. 6 defendants’ attempts to transfer their cases, including the judge who would rule on such a request in Trump’s case.

There is also D.C. Circuit Court precedent, dating back to the Watergate scandal, which deems it preferable to first conduct jury selection before concluding a fair jury cannot be selected for a case.

“No way I can get a fair trial or even close to a fair trial, in Washington, D.C.,” Trump wrote on Truth Social of the nation’s capital, which he has often trashed.

Trump pleaded not guilty last week to four federal charges stemming from his efforts to remain in power following the 2020 election. It is one of three indictments the former president faces, and a fourth could soon emerge in Georgia.

Since the Jan. 6 indictment, Trump has lashed out at the judge, special counsel Jack Smith and the city itself. 

Jimmy Gurulé, a Notre Dame Law School professor and former federal prosecutor, said an attempt by Trump to transfer the venue would be frivolous.

“There has to be compelling evidence that the defendant cannot receive a fair trial,” Gurulé said. “That’s the justification, whether or not the defendant can receive a fair trial. And at this point, there’s no compelling evidence whatsoever that Trump cannot receive, that there cannot be impaneled 12 impartial jurors to preside over the case.”

Trump and his attorneys have previewed multiple arguments for transferring the venue.

The former president has referenced the heavily Democratic skew of D.C. voters, arguing the city is “over 95% anti-Trump,” a likely reference to the near percentage of D.C. voters who cast a ballot for President Biden in 2020.

The District is more than 75 percent registered Democrat. 

U.S. District Judge Tanya Chutkan, an Obama appointee who is assigned to oversee Trump’s case, in April 2022 denied another Jan. 6 defendant’s attempt to move his case on similar grounds.

The defendant had noted the Capitol riot’s impact on local residents, pretrial publicity and how D.C. voted in the 2020 presidential election.

Chutkan rejected all of those arguments, calling the defendant’s contention about the city’s political makeup “misleading and ultimately unavailing.”

“He does not indicate what percentage of District residents actually voted in the 2020 election, so his emphasis on voters excludes many potential jurors who may not closely follow politics,” Chutkan wrote.

She also wrote, “In any event, Defendant’s assumptions concerning party affiliation in the District are not an appropriate basis for changing venue. 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.”

Trump has also suggested a transfer is necessary because he has called for a federal takeover of the nation’s capital. Trump has repeatedly attacked the city, including when Trump said he had seen “the filth and the decay” of D.C. when traveling to his arraignment last week.

“The goal may be that if Trump says — ‘If I say enough bad things about people who live in Washington, D.C., then maybe I’ll create a situation in which I can’t get a fair trial.’ But Washington, D.C., is a major city; there are lots of people there. I don’t think there’s going to be any difficulty finding a fair-minded jury in [D.C.], and I think there’s little-to-no chance that Trump will be able to convince a judge of that,” said David Sklansky, a Stanford Law professor and co-director of the university’s Criminal Justice Center.

Trump attorney John Lauro during an appearance on CBS’s “Face the Nation” on Sunday suggested that West Virginia would instead be an “excellent venue” to try the case.

“We would like a diverse venue, a diverse jury. One that reflects the characteristics of the American people,” Lauro said.

Lauro did not return a request for comment.

Trump won West Virginia by more than 38 percentage points in 2020, one of his largest victories in any state.

Bradley Moss, a national security lawyer, agreed it was unlikely a transfer to West Virginia — or anywhere else — would succeed.

“The suggestion of moving the case to West Virginia is ludicrous and exposes this all as a political talking point, not serious legal arguments,” Moss said. “D.C. is far more demographically diverse than West Virginia. The one thing West Virginia does have is that it heavily favored Mr. Trump, which, of course, is the real point of this idea. No part of this case is attached to West Virginia.”

Judges have sparingly granted transfer motions in past high-profile criminal prosecutions. Boston Marathon bomber Dzhokhar Tsarnaev’s efforts to move his case out of Boston were denied, and Enron CEO Jeffrey Skilling was unable to transfer his criminal case out of the Houston area.

Skilling’s effort went all the way to the Supreme Court in 2010. The court ruled that the publicity surrounding Skilling’s case did not prevent him from obtaining a fair trial. But the opinion noted a transfer to a different district “if extraordinary local prejudice will prevent a fair trial” is “a basic requirement of due process.” 

“It is simply not realistic to believe Mr. Trump can meet the ‘extraordinary local prejudice’ standard for transferring the case, at least based on his current evidence, and even with his repeated efforts to politically smear the city in an effort to inflame potential jurors’ passions,” said Moss. 

Binding D.C. Circuit precedent also provides that it is preferable to first attempt jury selection before transferring a case, meaning Trump’s best chance at succeeding may not come until down the road. The precedent originates from the criminal case of H.R. “Bob” Haldeman, Nixon’s chief of staff who was prosecuted in connection with the Watergate scandal.

Chutkan noted the case in ruling on the transfer motion last year.

“In any U.S. jurisdiction, most prospective jurors will have heard about the events of January 6, and many will have various disqualifying biases. The appropriate way to identify and address those biases is through careful voir dire,” Chutkan wrote, referring to the Latin term for questioning potential jurors’ fitness during jury selection.

Ella Lee contributed.