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Not content with efforts to suppress voting rights after unsubstantiated claims of a stolen presidential election failed to resonate in courts nationwide, Republicans high and low now target another feature of our flailing democracy: the rule of law and everyday jurors tapped by that law to decide the guilt or innocence of defendants on trial or, in grand juries, to decide whether sufficient evidence even exists for prosecution. For the uninformed, the Bill of Rights guarantees criminal prosecutions “by an impartial jury of the state and district wherein the crime shall have been committed.”
As usual when it comes to trashing American norms, 2024 Republican presidential candidate Donald Trump is at the root of recent threats of violence against jurors – in this case, the dozen who found him guilty on all 34 felony counts of falsifying business records to funnel hush money to a porn star. Granted, of all the allegations dogging Trump, this struck me as the most tenuous; yet it became clear during trial that Trump employed skullduggery and deceit to hide from voters in 2016 that he had sex earlier with a pornography star. Foolishly, he cooked the books to ensure her silence, thus cooking his own goose.
However convoluted the crime, New York jurors nonetheless decided the former president violated state law – and so a chorus of Republican politicians who supposedly cherish law and order lost no time in condemning the outcome, including the notion that New York jurors could ever render a fair verdict regarding Trump and that he had been due, at the very least, a change of venue. Trump eclipsed all in claiming injustice, labeling the trial “a disgrace. They wouldn't give us a venue change. We were at 5 percent or 6 percent [popularity] in this district, in this area. This was a rigged, disgraceful trial."
Not so fast, say no less than two high-ranking, Trump-appointed judges in a decision by a three-judge panel of the influential U.S. Court of Appeals in Washington, D.C., rendered two days before the New York verdict on Trump. In a spinoff of United States v. Webster, Marine veteran and former New York Police Department officer Thomas Webster – one of the most ferocious of insurrectionists storming the Capitol on behalf of Trump on January 6 – argued that his own request for a change of venue in his 2022 criminal trial should have been granted.
Webster, 58, sentenced to 10 years in prison for viciously assaulting a police officer and related charges, argued that he could not get an impartial jury in the District of Columbia because its jury pool was “simply too Democratic, too connected to the federal government and too steeped in January 6th news coverage to produce 12 unbiased jurors.” The trial court denied Webster’s motion, reasoning the district’s size and characteristics did not indicate a jury pool – whatever its thoughts on January 6 – was prejudiced against Webster personally.
The appeals court panel affirmed this denial in its May 28 ruling: To paraphrase, one need not favor bank robberies to serve as an impartial juror in the trial of someone charged with bank robbery. Few of us approve of the storming of the U.S. Capitol, whatever our political beliefs. That doesn’t mean the Department of Justice case against each and every person charged in the violence and chaos of January 6 is necessarily guilty. Solemn jurors are charged with weighing prosecution and defense evidence and testimony to make a studied, fair determination in each individual case.
“We expect jurors to view significant criminal events in their hometown with an unapproving eye, whether it is the January 6th attack on the Capitol, a murder or an armed robbery spree,” the judges wrote. “Generalized disapproval of criminal conduct – even the specific conduct at issue in a defendant’s case – says nothing about a juror’s ability to be impartial in deciding whether a particular individual committed a crime or not. What the Constitution forbids is for a juror to hold a firmly entrenched view about an individual defendant’s guilt or innocence before the trial starts.”
In his suit, Webster notes Jurors 3 and 8 generally expressed negative views of Trump and his supporters. “I certainly don’t have a high opinion of former President Donald Trump and, by extension, I don’t think his supporters are particularly smart for supporting him,” Juror 3 testified during jury selection. Juror 8 acknowledged: “I wasn’t a fan of Trump … so his supporters, I mean, you know … some of them do get a little chaotic and they’re not fun to be around when they’re being wild around the streets.” Juror 13 shared that, as “a black woman, at that period of [Trump] being president, I just felt unsafe.”
Yet the judges note: “Nothing in those jurors’ statements suggests that they had prejudged Webster’s guilt or were incapable of deciding the case objectively based on the evidence. Webster’s counsel, in fact, was so unconcerned that he did not move to strike any of them. He also declined the offer to question Juror 8 further.” As for Juror 3, Webster’s counsel asked only if Webster was “at a disadvantage with” him. When Juror 3 said no, the defense counsel responded, “[N]o? OK,” and moved on. Webster’s attorney also had little reservation about Juror 13 after further questioning.
And what sort of potential juror should be struck from consideration for obvious or suspected bias? The appeals court again points the way, citing in the case a potential juror who “said that he did not view the trial as ‘a zero-zero game to start’ and, when asked if he could abide by the presumption of innocence, candidly responded, ‘I really, I honestly don’t think so.’” For whatever reason, this prospective juror was never seated in the case of United States v. Webster.
What made any jury decision about Webster easy was what the appeals court in review described as the “overwhelming evidence against him, including at least four videos of the assault.” And to quote the federal prosecutor at sentencing: “Overall, the defendant's conduct and statements before, on and immediately after January 6th show that he anticipated violence, that he wanted violence and that he instigated violence. He brought with him his MREs, his NYPD gun, a ballistic vest, a military rucksack. He was clearly anticipating a violent clash.”
It’s also relevant that, during sentencing, Webster himself acknowledged being played the fool by Trump and his political and media minions: “Unfortunately, I became swept up in politics and former President Trump’s rhetoric. A picture of voter fraud had been painted. As a veteran, that created a panic and fear in my mind.” Defense attorney James Monroe noted that his client was “disabused of any notion that the 2020 election was illegitimate.” Monroe blamed Trump and the Republican Party for turning Webster and “otherwise decent, law-abiding individuals … against fellow Americans.”
The two Trump-appointed judges reaching this decision about jurors, impartiality and change-of-venue motions are Gregory Katsas, a former deputy White House counsel under President Trump, and Neomi Rao, who once served under Trump as administrator of the Office of Information and Regulatory Affairs. They rendered their decision along with Judge Patricia Millett, an Obama appointee who actually wrote the opinion on behalf of all three.
Yet the appeals court ruling sits uneasily alongside maniacal supporters of the man who appointed Katsas and Rao: Once again, we see Republican politicians recklessly and maliciously claiming Trump was railroaded. And Trump supporters are, once again, reverting to violent form a la January 6, threatening the lives of jurors, even their children. Yet these jurors were unanimous on all 34 felony counts, including one who identified as primary news sources Trump’s Truth Social media account and X, formerly Twitter, run by right-wing entrepreneur and conspiracy theorist Elon Musk.
It’s also relevant that the New York jury was selected with input from Trump’s own defense team.
“The institution of the jury may be aristocratic or democratic, according to the class from which the jurors are taken,” French political scientist Alexis de Tocqueville observed of juries in Europe and America in his seminal work “Democracy in America” after touring the United States only four decades after its constitutional founding. “But it always preserves its republican character in that it places the real direction of society in the hands of the governed, or a portion of the governed, and not that of the government.” In short, juries are “we the people” in action.
No wonder a neighbor of mine, a lifelong attorney who voted twice for Trump, exploded in outrage at the vicious threats leveled at jurors by Trump sycophants after a verdict was rendered: My friend knows well what those of us who spent our careers in daily journalism know: Jurors, who don’t ask to serve on juries but do so as good citizens, ordinarily take their responsibilities seriously – far more so than some privileged oaf of a defendant who sleeps in court, then departs to bellow, whine and trash the court and complain of being mistreated. It is a spectacle to indulge and thrill willing idiots.
So much for any remaining notion of the Republican Party being the party of law and order. If there's any other enlightening link between the broader Webster and Trump scenarios, it may involve the words of the trial judge during Webster's sentencing: "Now does he bear responsibility for it? Of course he does. But I said before and I will continue to say at every one of these sentencings, people who stand before me to be sentenced and in every other courtroom in this courthouse are in a sense victims too. And Americans of all stripes should understand that."
Bill Whitaker spent 45 years as a reporter, editor and columnist in Texas journalism, including a dozen years as Waco Tribune-Herald opinion editor. He is a member of the Tribune-Herald Board of Contributors.
