Editor’s Note: Norman Eisen is a CNN legal analyst and editor of “Trying Trump: A Guide to His First Election Interference Criminal Trial.” He served as counsel to the House Judiciary Committee for the first impeachment and trial of Donald Trump. The views expressed in this commentary are his own. Read more opinion at CNN.
There has been some head-scratching about what former President Donald Trump is up to in his defense in the hush money payment trial against him, for which jury selection begins Monday. He keeps filing motions that seem certain to lose, and then when they do he sometimes refiles them again. Some have suggested that he is using the trial to cultivate a narrative of grievance to boost his political standing among his followers nationally, and he undoubtedly is.
But as the author of a new book analyzing the case, it appears to me that he is attempting to reach his supporters in Manhattan in the hopes that at least one will make it onto the jury and then steadfastly refuse to convict him — no matter the strength of the evidence. (Trump denies all wrongdoing.) Judge Juan Merchan’s just-released and extremely detailed jury questionnaire demonstrates that he’s on guard against Trump’s maneuvering — but that doesn’t mean that, if this is Trump’s strategy, the former president won’t continue to try.
When a juror completely disregards the evidence and the law and instead decides based on other reasons such as bias, that is known as “jury nullification,” and it happens for a variety of reasons. When I was a criminal defense lawyer in Washington, DC in the 1990s, the phenomenon was the subject of considerable attention because some of our jurors were fed up with the war on drugs and the associated police strategies. No matter how overwhelming the proof, prosecutors found that they would get a juror who simply would not follow the law. Because criminal juries must be unanimous, even one such juror is enough to prevent a guilty verdict.
My book details dozens of times in which Trump has made obviously losing arguments in the hush money case — a pattern that supports the inference he might be seeking a jury nullification strategy. The latest example: he’s trying to have the judge recuse himself based on flimsy allegations of conflict of interest because his adult daughter works for a firm that does work with Democratic candidates. As the former White House ethics czar, I know that the occupation of an adult child who is not a party or a witness to a case does not give rise to a conflict under New York law.
What makes this even more suspicious is that Trump previously raised and lost this motion. Indeed, as part of that prior go round, the state judicial commission on ethics said there was nothing to it.
Nevertheless Trump has filed again claiming the facts have changed because he is now the presumptive Republican nominee and Democrats — including the judge’s daughter and the firm she is part of, and its clients — will supposedly benefit from the Trump prosecutions. But none of that materially changes anything with respect to the erroneous argument that Merchan has a conflict, because as matter of law we don’t hold judges responsible for the outside activities of their grown children. I believe Trump clearly is up to something other than winning these motions, and that it is fair to conclude tainting the jury pool is part of it.
Here’s how it works. Step one: Cue up a fight with the court, no matter how ridiculous. The point is the fight itself — not to win. In another recent example, Trump pushed the limit of a gag order the judge had already imposed. He lost when the gag order was extended to shut down his shenanigans– but he got a tremendous amount of ink out of the fight. He also just failed in reupping his effort to assert absolute immunity even though he had previously litigated this issue and lost. And he’s currently pushing another recurrent and doomed kvetch about pre-trial publicity as a basis to delay the trial. It isn’t, and that effort was just rejected as well.
Step two: Try to get a hearing out of it, provoking even more intense news coverage in the heart of New York City — and further goose attention by having Trump be present in court for the most high-profile clashes, guaranteeing they will dominate the headlines in the days before, during and after the hearing itself.
That’s what Trump did with his attempt to delay the trial last month after tens of thousands of documents were produced at the last minute by federal prosecutors in response to a subpoena from Trump. At the actual hearing, his lawyers could not identify a single useful citation to support delay. Some wondered why they bothered — but if the point was to trigger anger among potential Trump-supporting jurors, it makes sense.
Step three: Hold a Trump press conference, which ensures that any jury nullification advertisement has the broadest possible reach with the jury pool. His court appearances in the hush money case tend to be followed by speaking to the press such as at his 40 Wall Street building, where he blasts the prosecutors, judges, witnesses and the entire system he claims is going after him.
We cannot, of course, be sure that this is what Trump is up to. He and his lawyers certainly would never admit it; preemptively influencing jurors to violate their oaths to follow the law would hardly be welcomed by the tough judge in this case.
Fortunately the judge need not wait for a confession to deal with Trump‘s tsunami of futile motions and the attention they may be drawing among potential jurors. He has begun the effort to ameliorate that threat in the form of his very thorough written juror questionnaire. All prospective jurors will have to complete it before they are questioned in court.
The document includes direct questions to probe the possibility of bias — such as whether potential jurors “will be fair and impartial.” And it also includes ones that make clear the inference of influence — such as whether potential jurors have attended a Trump rally or even where they get their news from. The breadth of the questionnaire is likely to be effective — it’s one thing to harbor a grudge on behalf of Trump, but quite another to outright lie about it.
We can expect similar scrutiny on voir dire — individual questioning of each of the jurors who make it past the rigorous screening in the questionnaire. It may take time, but the care is worth it, given the risk of a jury nullification campaign here.
Beyond ordering a probing juror questionnaire, Merchan has also attempted to stanch the flow of Trump’s baseless motions, requiring the parties to seek permission before filing any motions. Now he should up the ante by starting to sanction Trump and his lawyers for any frivolous arguments from here on out. The former president and several attorneys associated with him have been hit with sanctions in prior cases for frivolous action against a political adversary and, of course, for pushing Trump’s 2020 election lies, and it is time for them here.
If, as the evidence suggests, Trump is trying for jury nullification, it is hardly a sign of strength. On the contrary, as I argue in my book, Trump is in a position of weakness. He is at great risk of conviction and a sentence of incarceration, and he knows it. That is reflected in his desperate motions strategy, whatever its explanation.