NEW YORK — After two and a half days, a full jury of twelve has been selected for Donald Trump’s New York City hush money prosecution.
One alternate has also been selected, with an additional five alternates expected to be chosen at a hearing on Friday.
Throughout the process, Trump and his attorneys have tried to shape the jury through an approach which implicitly upends one of the basic principles on which selection relies.
In a way, it’s a simple approach: paint a bedrock assumption of jury selection — that jurors are capable of impartiality — as fallacious.
That strategy has resulted in a bizarre situation unfolding over the past two days. As Trump’s attorneys sought to disqualify jurors — using their for-cause challenges to ask Justice Juan Merchan to excuse the prospective panelists — they went further than identifying instances in which the people showed real bias, like one prospective juror who posted “lock him up” during the Trump administration.
Instead, they treated nearly any sign that a potential juror has a political perspective with the assumption that that perspective must put them at odds with Trump, and as an indicator of disqualifying bias. At one point, a juror was forced to admit that she read Andy Borowitz, who until 2023 wrote joke columns for the New Yorker; at another, a juror who described Trump as not her “cup of tea” and “selfish,” but conceded that she agreed with some of his policies, earned a vigorous challenge from the former president’s attorney Susan Necheles.
Merchan shot those challenges down, but the experience resulted in a psychodrama at once incredibly entertaining and mildly horrifying. For liberals who spent much of the Trump administration posting on social media about their disdain for him, his behavior, and his government’s policies, it turned into a surreal nightmare: now, years later, Trump’s attorneys have dug up those statements, and are confronting the posters with them with Trump himself in the courtroom.
It’s a byproduct of the overarching strategy. Instead of operating within the process of jury selection, which assumes that people are capable of setting aside whatever political beliefs or biases they may have in order to render a good faith judgment on the evidence, it casts the assumptions underlying that process as Trump’s enemy to be defeated, implying that the jurors themselves are incapable of both being impartial in their judgment of him and participating in a political system in which he is a main actor.
In a way, it’s of a piece with the deeper corrosion of the principles of fairness which undergird the justice system. But, at the same time, it’s obvious from sitting in the overflow courtroom that this is all wildly unprecedented. Trump has been a player in American culture for decades. Every American eligible to vote has been asked two times to vote for Trump; we’re being asked a third time this year. His personality has dominated politics for eight years, and been a big part of the culture for decades. All of that raises legitimate questions around where one might find jurors who have not yet formed a political opinion of the man.
One prospective juror articulated this clearly during voir dire.
“I once saw him and Marla Maples shopping” for baby clothes, the prospective juror recalled. She added that she had a cousin who had lived in one of his buildings, and generally had a positive impression from his pre-presidential time.
“How I feel about him as a president is different,” she remarked. “I have feelings in both directions.”
Another juror told the court during selection that while she didn’t like Trump’s “persona,” it wouldn’t affect her ability to be fair.
“I don’t like some of my coworkers,” she said, earning laughs from the overflow press room.
Necheles made a for-cause challenge to that juror, saying that she was anti-Trump and irredemably biased.
But Merchan pushed back, saying that Necheles was taking things out of context, while making a broader point.
“You ask jurors, how do you like sex abusers?” Merchan mused. “And the answer is nobody likes them.”
Trump was found liable for sexual assault earlier this year in the E. Jean Carroll civil case.
Necheles tried to distinguish between the allegation and the man: “Nobody likes a sex offender, but you don’t like the crime.”
Merchan denied the challenge to that juror.
His attorneys tried to use for-cause challenges to disqualify one juror on Tuesday and another on Thursday in part because their spouses had made statements critical of Trump. Merchan denied both the challenges, saying that he couldn’t find a juror was biased due to their partnership with someone of different political beliefs.
In the same way that Trump often sought to paint the political system as either for him or against him, with no gray area, he’s tried to do the same in jury selection.
It also mirrors another element of Trump’s strategy in politics: stay on the offensive, always, bulldozing whatever rules might come in the way. Always attack, and figure out your next move later.
In keeping with that strategy, his attorneys used their ten peremptory challenges to disqualify jurors who, under their rubric, were biased. Merchan had declined to remove several of them after unsuccessful for cause challenges from Trump. Another full day of voir dire on Friday will decide the remaining jurors.
The third day of jury selection was again striking, and Trumpian, for the swath of New York characters inside and outside the courthouse, including, reportedly, George Santos, who was down the street at the federal courthouse.
This morning, I was able to get into the courthouse before Trump himself arrived for the first time. Trump’s arrival isn’t visible from where you wait so much as it’s audible — a news helicopter was following his motorcade around, his arrival is announced by the growl of the helicopter blades.
It did afford me the opportunity to speak with one member of the public who decided to watch the proceedings, wearing an airplane pin and carrying a massive purse with a bronze clock on the outside.
This spectator told me that he was here not so much out of political or legal interest, but rather the pecuniary: he’s a professional poker player who planned on observing the body language, facial tics, and speech patterns of those involved in the case. He would then sell the information to professional gamblers seeking to bet on the outcome.
“In the gold rush, the people who were guaranteed to get rich sold the shovels,” he said.
In keeping with that strategy, his attorneys used their ten peremptory challenges to disqualify jurors who, under their rubric, were biased, but which Merchan declined to remove. In keeping with that strategy, his attorneys used their ten peremptory challenges to disqualify jurors who, under their rubric, were biased. Merchan had declined to remove several of them after unsuccessful for cause challenges from Trump.
Excellent take on this. It’s annoying that there’s this idea that people who have any opinion (which everyone basically does) cannot be impartial. It feels like that shifts the balance against jurors who are being truthful. So the only way to get on is to pretend you’ve lived under a rock for 10 years. I distrust those people more than those admitting they have feelings but believe in their ability to be impartial.
The presence of social media posts is an interesting quirk. I mean, yes, it’s useful to weed out bias. But OTOH, before social media existed, the court didn’t interview potential jurors’ friends and family to see if they were telling the truth about being impartial. So, it’s sort of the same thing? I mean, you can probably find questionable posts from anyone if you look hard enough. (Unless they stay off all social media, which is a better and better option, frankly, but most people use it.)
Anyway, glad the judge has pushed back on this to some degree.
Two questions:
Is Tommy Lee Jones his lawyer?
and
Does he know is lawyer is looking at him like that?
In the rush to publish the piece, someone forgot to proofread.
First draft of history and all that…