Trump-appointed judge could 'tilt the process in his favor' during jury selection: legal experts

22 June 2023

Although many legal analysts believe that special counsel Jack Smith has built a strong case against former President Donald Trump, that doesn't necessarily mean that he will be convicted on any of the federal 37 counts he is facing. Smith and allies in the U.S. Department of Justice (DOJ) will need to convince jurors that the allegations are true.

Smith alleges that Trump endangered the United States' national security by storing classified government documents at Mar-a-Lago — documents that, according to Smith, should have remained in Washington, D.C. when Trump left office on January 20, 2021. The indictment includes allegations of obstruction of justice and violations of the Espionage Act of 1917.

Trump's critics are worried that the federal judge the case has been assigned to, Trump appointee Aileen M. Cannon, will be biased in his favor. In an article published by the conservative website The Bulwark on June 22, law professors Jeffrey B. Abramson and Eugene R. Fidell and former federal prosecutor Dennis Aftergut warn that Cannon could help give Trump a friendly, sympathetic jury during the voir dire (jury selection) process.

"Legal experts, among others, lost trust in Judge Cannon as a fair-minded jurist in September when, without plausible legal authority, she appointed a special master to review the classified documents the government seized in the court-authorized search of Mar-a-Lago the previous month," they explain. "The Eleventh Circuit bluntly corrected her for treating a former president specially. Cannon's trial date order suggests that she 'got the memo' and may have learned a lesson."

Abramson, Fidell and Aftergut continue, "Still, there are many ways Judge Cannon could still tilt the process in Trump's favor, from evidentiary rulings to jury instructions. Atop the list of ways she could tip the scales of justice is in how she conducts jury selection. Her responsibility is to weed out individuals with unshakeable, pre-formed opinions of innocence or guilt. How she does that — or doesn't, as the case may be — could determine the outcome of the trial."

The legal experts note that Smith "took a risk by indicting Trump in Florida."

"Trial by a Florida jury would tend to favor Trump more than if the case had been brought in Washington, D.C.," Abramson, Fidell and Aftergut explain. "In 2020, Trump carried the popular vote in all five of the counties from which jurors would be drawn if, as the New York Times reports, the trial is held in Ft. Pierce, Florida, where Judge Cannon presides. Hence, a trial there would likely begin with a majority of Trump voters. By contrast, in 2020, Trump lost D.C. by 87 points and New Jersey by 16 points."

The legal experts' full article for The Bulwark is available at this link.

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