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The Legal Pundits Don't Get It Either

Many news stories about Donald Trump's many legal problems are based on interviews with lawyers and former prosecutors. Most of them say that New York, Georgia, and the feds all have ironclad cases with mountains of facts and proof that Trump violated multiple laws. See here, here, and here. Most of them conclude that Trump's goose is cooked and he will never be acquitted.

That may well be true, but it misses the point. Lawyers naturally think in terms of "acquittal" and "conviction." That is what they are trained to do. But there is a third possibility: a hung jury. We see Donald Trump's actions pointing to a different legal strategy than that of his own lawyers. He probably knows that the chances of acquittal are very low. But if he can convince enough of his supporters that he is a victim, just as they are, and they should never desert him, he might be able to get at least one never-say-guilty supporter on each jury and end up hanging all the juries. In the event of a hung jury, the prosecution may try again, but if the new trial is in the same place as the previous one, the jury pool is going to be the same and there is an excellent chance of another hung jury. And another.

For example, Aileen Cannon's courthouse is in Fort Pierce, FL, which is in St. Lucie County. Trump won that county in 2020 with 50.38% of the vote. The surrounding congressional district, FL-21, is R+7. This means that there are likely to be half a dozen Republicans on the jury, and all it takes is one who believes Trump is being framed to get a hung jury. If one juror is convinced that Trump always tells the truth so the FBI must have secretly planted the evidence against him and he or she refuses to vote to convict, the trial will end in a hung jury. And since the next trial will probably be in the same place, the next jury could easily also have one juror who simply won't vote to convict either. And the next one and the next one.

The lawyers who are in the news all assume that jurors are all reasonable people who will listen to the facts and the judge's instructions and come to a logical conclusion. They don't count on a small number of people who see Trump as some sort of deity and who won't betray him, no matter what. The prosecution will try to weed them out during the voir dire process, but they have only a limited number of peremptory challenges.

Trump seems to understand the situation better than the lawyers and is thus focusing his campaign on trying to convince his supporters that he is a victim of the DoJ or the Deep State or the Democrats or something. All he needs is to get one diehard on each jury. After three or four trials with hung juries, the prosecution will probably give up, realizing that a conviction is never going to happen.

This doesn't mean Trump is out of the woods. The Mar-a-Lago case is probably the easiest case to prove, but it is not the only one. Trump showed classified documents to unauthorized people at his club in Bedminster, NJ. Bedminster is in Somerset County, where 38.7% of the vote went to Trump. It is in NJ-07, which is R+1. That is Republican enough that there could still be one Trump diehard who manages to get on the jury if a case is brought there.

The one place where a "hung-jury strategy" might not work is in D.C. If there are charges brought in conjunction with the coup attempt, the trial for that will be in D.C. There only 5.4% of the votes went for Trump. The chance that a dyed-in-the-wool Trumpist makes it onto the jury there is low because there are so few of them in the local jury pool.

In normal cases, the chances of a hung jury are fairly low because none of the jurors have ever heard of the defendant before and listen to the facts and the judge. Even if the crime is absolutely horrific and one juror wants the accused to get 50 consecutive life sentences, the other 11 jurors can say: "We agree whoever committed the crime should get 50 consecutive life sentences. Only it is really not certain the defendant committed the crime. We can't send an innocent person to die in prison for a horrendous crime that somebody else committed."

What makes the Trump cases so unusual is that many jurors have exceedingly well-formed opinions of Trump's guilt or innocence long before the trial starts and some of them may not be moved at all by new facts they don't like. In any event, we think Trump will continue his strategy of p*ssing in the jury pool, hoping for an endless string of hung juries rather than a clean acquittal in any case. (V)

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