In the wake of the recent news that Michael Flynn has plead guilty to lying to the FBI, the news cycle has again become consumed by the Mueller investigation.
The investigation’s first trial, into Trump’s former campaign chairman Paul Manafort and his associate Richard Gates, is expected to commence in the spring according to a report by the Wall Street Journal. But the media’s unrelenting focus on the case, the fact that it deals with such a politically charged issue, and the profound implications its outcome will have for the Presidency–all in a historically divisive national political climate– raise questions about whether any jury could hear such a case without prejudice.
The impartiality of juries in highly visible cases involving public figures is not a new problem for the courts. For example, a few weeks ago, a mistrial was declared in the corruption case of New Jersey Senator Bob Menendez, whose charges were widely publicized and discussed in New Jersey media outlets for months beforehand.
US courts have developed several mechanisms to root out whether a prospective juror might hold a bias against the defendant, or against key witnesses. In the case of the Menendez trial, jurors were required to fill out a questionnaire detailing where they got their news from, their party affiliation, and whether they had ever visibly supported a candidate by, say, displaying a bumper sticker. Other questionnaires used in trials inquire as to whether prospective jurors have talked about a case to family members or co-workers. In the digital age, potential jurors can also expect to have their social media activity combed through by both defense and and prosecution attorneys.
Nonetheless, the Mueller investigation is different by degree in the juror bias challenge it poses. This is all the more true in our era of fragmented media and “fake news,” where individuals can self-select news sources that reinforce their pre-existing biases, buttressing some convictions devoid of factual content.
There is one other reason these trials will be unique: the fact that President Trump is likely to tweet during the trial. There is every reason to expect this, as Trump has shown little reluctance to use Twitter to comment on judicial proceedings in the past, as in the case of his travel ban.
To prevent the President’s views from tainting those of the jury, the judge could–and probably will–sequester the jury. That tactic was used, famously, during the O.J. Simpson trial. This would require jurors to remain in one location during the trial (normally a hotel), and the judge would bar them from accessing any media that could alter their perceptions, including the newspaper and the television. Without a social media ban, as well, jurors might still access Trump’s tweets–and anything else channeled through Facebook, Twitter, and other accounts.
As former federal judge Richard Howell explained to the Wall Street Journal:
[Each time Mr. Trump comments on the case during the trial] “a jury would have to be examined one-by-one as to whether they heard the remark and whether it has any impact on what they’re doing. It will be a challenging trial.”
Regardless of whether or not sequestration is employed, the full context surrounding any jury selection process relating to the Mueller investigation is exceptional.