Can Trump Get a Fair Trial at the Overwhelmingly Democratic District of Columbia?

President Trump’s suggestion, on the eve of his arraignment in a District of Columbia courthouse, that his criminal trial be moved to West Virginia snaps into focus how perilous D.C. could be as a trial venue for the White House’s former inhabitant.Mr. Trump took to Truth Social to reckon that it is “IMPOSSIBLE to get a fair trial” at Washington, D.C., and to demand that his January 6 case be relocated to “the politically unbiased nearby State of West Virginia.” He called the Mountain State an “impartial Venue.” He has made no such claims about the southern district of Florida, where Judge Aileen Cannon is supervising his Mar-a-Lago documents trial. It is unlikely that Special Counsel Jack Smith’s case will relocate to the “country roads” of West Virginia — some geographic connection to the alleged crime is needed for the venue to be proper. Mr. Trump’s instinct for removal, though, suggests that a more formal filing could follow the arraignment and pleading. In Florida, where he faces criminal charges with respect to the documents stored at Mar-a-Lago, Mr. Trump has called attention to the challenges he will face — as a former president and, possibly, a future one — in finding what the Constitution accords to the “accused” — an “impartial jury of the state and district wherein the crime shall have been committed.” That challenge promises to be even stiffer in bright-blue D.C. To achieve a change of venue, Mr. Trump will have to show a reasonable likelihood that he will not receive a fair trial in the nation’s capital. The Federal Rules of Criminal Procedure mandate removal if the “court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” Only a defendant can move for a change of venue because, as the federal code explains, the “defendant has a constitutional right to a trial in the district where the offense was committed.” That right, though, must not infect the defendant’s rights under the Constitution’s Article III, the Sixth Amendment, and the right to Due Process encoded in the 14th. Mr. Trump’s chances of escaping a trial at D.C. could hinge just as much on the judge hearing the case as on the composition of the jury that will be charged with rendering a verdict. Judge Tanya Chutkan, nominated to the bench by President Obama and confirmed by a 95-0 vote, has already amassed a voluminous record when it comes to presiding over trials of January 6 defendants. At moments, Judge Chutkan has, albeit obliquely, reflected not only on the defendant who stood before her but also the one she could not have known would arrive in her courtroom. She told one that “people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged,” an apparent allusion to political leaders like Mr. Trump. Judge Chutkan mused from the bench that “I have my opinions” about who is ultimately responsible for the events of January 6, 2021. Her comments have not all been oblique. Ruling against efforts by Mr. Trump to keep records from the January 6 commission — whose work made its way into Mr. Smith’s indictment — Judge Chutkan explained in 2021 that “presidents are not kings, and plaintiff is not president.” Now, a former one will be a defendant in her courtroom.Mr. Trump could reckon that a change of venue is unlikely because the bar to showing the impossibility of a fair trial is not cleared merely by observing the political proclivities of the jurisdiction in question. He could also, though, move for Judge Chutkan to recuse herself. Jurists are required to recuse from “any proceeding in which his impartiality might reasonably be questioned.” Mr. Trump has invoked the taint of bias before. He tried to remove District Attorney Alvin Bragg’s hush money case to federal court, partially over concerns of a New York County jury pool. That effort failed. In Georgia, the former president’s endeavors to disqualify the district attorney of Fulton County, Fani Willis, foundered against what a judge called the “significant showing” required “to grant such uncommon relief.”The outcome of a Supreme Court case from last term, Smith v. United States, could haunt Mr. Trump even if he endures a conviction but then convinces an appellate court that the District of Columbia was an improper venue. In June, the Nine ruled that while proper venue “was highly prized by the founding generation,” if improperly assigned, it did not bar retrial on the same charges.

Can Trump Get a Fair Trial at the Overwhelmingly Democratic District of Columbia?

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