Durham Is Right: Conservatives Can't Get A Fair Trial In D.C.
S E E D E D C O N T E N T
Special Counsel John Durham breached neither ethics nor etiquette when he highlighted the difficulty of obtaining a conviction in a politically charged case when the jury holds opposing partisan views. He merely stated the reality on the ground in D.C.-area federal courts. And by his own actions prosecuting the J6 defendants solely in the nation's capital, Attorney General Merrick Garland has confirmed that assessment by proving the corollary: Criminal cases against individuals viewed by the local populace as political pariahs make for easy convictions.
"Did the Durham Report's Criticism of Juries Go Too Far?" The Washington Post's headline from last week asked rhetorically. It was quite an ironic concern coming from the legacy outlet serially guilty of publishing fake news to propagate the Russia-collusion hoax. A better question for the "democracy dies in darkness" rag would be: Did Clinton and Democrats' Dirty Politics Go Too Far?
But no, instead of focusing on the substantive content contained in the 300-plus pages of Durham's report detailing malfeasance by the Department of Justice and FBI and the Clinton campaign's responsibility for the scandal, The Washington Post focused on Durham's introductory remarks explaining the "special care" the special counsel's office used in making criminal charging decisions — decisions Durham stressed were "based solely on the facts and evidence developed in the investigation and without fear of, or favor to, any person."
After noting the high burden the Constitution places on the government in criminal cases, Durham explained why, in numerous instances, he did not seek criminal charges even though the conduct deserved "censure or disciplinary action."
"In examining politically-charged and high-profile issues such as these, the Office must exercise — and has exercised — special care," Durham explained. "First, juries can bring strongly held views to the courtroom in criminal trials involving political subject matters," Durham continued, "and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court's best efforts to empanel a fair and impartial jury."
Those taking umbrage at Durham's remarks, claiming they erode faith in our justice system, seem to have missed that the Justice Department's manual, "The Principles of Federal Prosecution," quoted in the special counsel report, makes the same point. Sometimes while "the law and the facts create a sound, prosecutable case," the manual explained, there is still "the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause…" It continues:
For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt viewed objectively by an unbiased factfinder would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict.
Prosecutors in such cases, the manual explained, might assess a guilty verdict unlikely "based on factors extraneous to an objective view of the law and the facts."
In other words, biased juries and politics, rather than an "objective view of the law and the facts," may dictate whether a defendant is convicted or acquitted. These are not merely the sentiments of Durham or Republicans, but the Department of Justice. So it isn't Durham's words that erode trust in the legal system, but rather insular juries.
It also isn't merely the unsuccessful cases Durham brought against Michael Sussmann in the D.C. federal court and Igor Danchenko in the nearby federal court in Virginia that foster Americans' distrust of the justice system. It is also the DOJ's insistence that the scores of J6 prosecutions remain in the nation's capital.
D.C. Jury Pool Is Biased
Following the Jan. 6, 2021, breach of the U.S. Capitol, the Department of Justice has charged hundreds with federal crimes. Because the alleged offenses occurred in D.C., federal law provides that "venue," meaning the physical location for the criminal proceedings, is proper in the federal D.C. district court.
Congress, however, has provided two bases to change venue. First, a federal court must transfer the criminal proceedings if the defendant requests a change of venue and "so great a prejudice against the defendant exists … that the defendant cannot obtain a fair and impartial trial there."
While many J6 defendants have moved for a change of venue based on such prejudice, the DOJ has uniformly opposed the transfers. And because the "so great prejudice" standard is nearly insurmountable, the federal D.C. district court has denied the change of venue requests, even against evidence that 90 percent of D.C. voters cast their ballots against Trump in both 2016 and 2020. Furthermore, while almost everyone in D.C. knows about the indictments, polls show more than 70 percent of them — which is 15 percent higher than the national average — have formed an opinion about guilt or innocence.
Nor have the D.C. federal courts granted a change of venue "for convenience" — a second statutory basis Congress provided — which would allow the J6 defendants to be tried in their home states for their convenience, the convenience of witnesses, and "in the interest of justice." Given that the DOJ farmed out the J6 cases to field offices throughout the United States, tasking local agents with surveilling and arresting the defendants, and that there are U.S. attorney offices in every state, trying the defendants across the country is also no inconvenience to the federal government.
So even if the prejudice is not "so great" that it is mandatory to change the venue of the case, why does the DOJ oppose the discretionary transfer for convenience?
Because Garland — like Durham — knows D.C. juries "bring strongly held views to the courtroom in criminal trials involving political subject matters and those views can, in turn, affect the likelihood of obtaining a conviction." In fact, so great is the concern of a pro-DOJ bias that several defendants have made the nearly unheard-of decision in a criminal case to waive their right to a jury trial and have the judge decide their fate.
Americans likewise recognize the effect biased juries have on case outcomes. The attorney general ignoring the public perception of Lady Justice peaking from behind her blindfold will further erode respect for the judicial system and likely prompt future jurors to convert the trial process to a payback system — convicting the innocent or acquitting the guilty in a misguided attempt to right the scales of justice.
What Courts and Congress Should Do
The courts and Congress can and should respond. When faced with discretionary venue changes for "convenience," courts should weigh more the "convenience" of the defendants and "the interest of justice." When a question of mandatory transfers based on "great prejudice" arises, the courts should stop pretending our partisan divide is passable based on jurors' promises.
Congress has several options too. While it has authorized the Supreme Court to promulgate rules governing federal criminal procedures, it retains the power to enact its own rules. At a minimum, in high-profile criminal cases, Congress should grant both the prosecution and the defense more "peremptory challenges" — challenges to members of the jury pool that can be used for any reason (except invidious discrimination). This will eliminate some of the most concerning situations.
For instance, in Durham's trial against Hillary Clinton's former lawyer, Sussmann, the federal judge rejected several of Durham's "for-cause" challenges against jurors who had contributed to the Clinton campaign. When for-cause challenges fail, attorneys must rely on a limited number of peremptory challenges, six for the special counsel's legal team and 10 for Sussmann. Expanding the number of peremptory challenges would allow for the removal of more potentially prejudiced jurors, and without a venue change, this represents the best mechanism for ensuring an unbiased jury.
More significantly, though, Congress should amend the venue rules to give defendants a better opportunity to relocate highly politicized cases to less partisan locales. While the courts already have that power, they have proved themselves too parsimonious to date.
But what about when partisanship prejudices the prosecution? Here, the Sixth Amendment places limits on venue, providing that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…"
In other words, while a defendant may consent to a change of venue, he can also demand a trial in "the State and district wherein the crime" was committed.
However, the Constitution also gives Congress the authority to "ascertain" the districts. To counter the overwhelmingly parochial D.C. populace, redrawing the borders of the district to limit venue there to the physical Capitol buildings, and then have the rest of D.C. subsumed by the surrounding districts in Virginia and Maryland, would ensure a broader jury pool.
Only so much can be done, however, to ensure juries don't supplant the rule of law with their political passions, acquitting the guilty because they prefer the defendant's politics to the prosecutor's. But that's the reality that comes from a constitutional system that protects individual rights against government abuse and believes "that it is better that ten guilty persons escape than that one innocent suffer."
That's a good thing, especially as the current DOJ frames pro-lifers and parents as domestic terrorists. But that doesn't mean it's a bad thing to remind Americans that juries may not convict because of strongly held political passions rather than actual innocence. Nor is it a bad thing to push Congress to ensure the venue statutes counter bias to the largest extent possible.
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It's time to admit to the obvious.