By Steve BermanIf I won the (U.S.) presidential election, my first act after the inaugural festivities would be to ask for the real intelligence files on alien bodies and craft held at Area 51. Then I’d promptly declassify it. Who cares about the intergalactic NDA and intellectual property rights agreement, enforceable by planetary destruction, that every president since Truman ratified? I mean even Trump didn’t break that one, did he? Well, I would and dang it, as president, I’d have the perfect right to do it. The public deserves to know. No jury would convict me.
I always thought the scene from “The Untouchables” where the judge swapped the jury pool after being told by Ness that his name was in the encoded ledger, was completely made up. To mix movie metaphors, as Chief of Staff Nimziki said to President Whitmore in “Independence Day” — PRESIDENT: “Regardless of what the tabloids have said, there were never any space crafts recovered by the government. Take my word for it, there is no Area 51 and no recovered space ship.” NIMZIKI: “Uh, excuse me, Mr. President, but that’s not entirely accurate.”
History reveals that Capone tried to bribe and intimidate the jurors in his tax evasion and Volstead Act trial. Ness discovered this and had the jury pool swapped with another case. So, it happened—not quite like the movie, but it’s not made up. See, Capone was guilty as hell. The Volstead Act charges were eventually dropped but the income tax charges stuck, and the government locked up Capone, took his properties, and him to rot with an eleven year sentence. He served seven years, six months and fifteen days.
I think you know where I’m going here. If the jury pool was not swapped, then no matter how strong a case the government had, Capone would have been acquitted. Now, let’s look at the concept of juries. A jury’s purpose is to arrive at a verdict, literally to “say the truth” of the matter. Lawyers representing the state and the defendant try to convince the jury that their theory of the facts and the law are more correct than the opposing side. The judge is there to decide the matters of how the law applies and what evidence should be presented, by whom, and how it should be viewed. Then the jury goes off and does its thing.
If the jury decides, in spite of the facts and the law, that they are going to find the defendant guilty, when prosecutors have not proven their case beyond a reasonable doubt, the judge will set the jury’s verdict aside, and dismiss the case (or declare a mistrial, depending on circumstances). It’s also in the judge’s power to set aside a not guilty verdict by declaring a mistrial, but that’s a very high bar. In a high profile case, the judge isn’t going to set aside a jury’s nullification—meaning the jury has nullified the law for reasons other than the matter of the case.
Perhaps the defendant was railroaded, or didn’t deserve the penalty attached to the charges, though they are clearly guilty. Perhaps, like O.J. Simpson, despite being clear that he probably did it, just enough Chewbacca magic (“if the gloves don’t fit, you must acquit!”) exists to indulge in a bit of street justice—not for Simpson, but for Rodney King. Or perhaps the defendant has so captured public imagination, or intimidated the jurors, that nobody would dare convict.
Applying nullification to a couple of situations that seem to never go away, let’s look at Hillary Clinton (painful as that is). Hillary violated the law in mishandling classified information, committing gross negligence. The FBI under James Comey wouldn’t bring charges. But what if the DOJ did bring this to trial? Would any jury nullify Clinton’s conviction in the face of clear evidence and a competently presented prosecution case? Perhaps, but in the political climate of 2016 and 2017, probably not. With Trump whipping up crowds to chant “lock her up!” I think Clinton would get a fair trial. In fact, I think she’d plead guilty to some lesser charges and avoid jail time.
What Clinton wouldn’t do is shout “nobody would convict me!” and charge ahead into a jury trial. And that’s also what Hunter Biden didn’t do. Biden’s failure to file and pay taxes timely is not debatable. His possession of a handgun obtained by making false statements on Form 4473 is a matter of physical evidence. This is one of those cases where if the jury acquitted, it may be in the judge’s purview to declare a mistrial if it was felt that the defense encouraged nullification. But no jury was going to acquit Hunter Biden. He would get a fair trial, and his lawyers were smart to take a good plea deal—the judge is going to be far more lenient than a jury.
Now let’s talk about the king of nullification risks: Donald J. Trump. The prosecution’s case is pretty strong. As Trump’s own attorney general, Bill Barr, said “if even half of it is true, he’s toast.” So Trump doesn’t have the facts on his side. He really doesn’t have the law on his side either, unless the law can be pretzeled to the point of farce. But he may have the jury on his side. A south Florida jury, selected from the MAGA and near-MAGA pool, makes this a political statement, just like O.J. was a race case.
Trump has been running his jury intimidation and bribery operation for seven years. His entire case is that the law must be nullified, because “no jury would convict me!” The biggest risk in prosecuting Trump is that the jury will acquit him in the biggest nullification this country has ever seen. And the Trump-appointed judge would be constrained from directing a guilty verdict—but would she call it a mistrial?
Could any federal judge, in fact, not want to cry “mistrial” the moment a jury is seated and Trump’s lawyers start hawking their nonsense defense? I don’t know. It will be hard to find a jury that’s not tainted by the politics. And it will be hard to find a jury willing to agree without holding the trial in Austin, Texas, or New York City, or San Francisco. But Trump’s crimes occurred in Palm Beach, Florida. Nullification is a risk.
I’m not saying Trump shouldn’t be prosecuted. I am saying that, unlike Capone, it may not be possible to swap the jury pool to prevent a tainted outcome. Trump’s defense is “no jury would convict me!” because otherwise he wouldn’t have admitted guilt on television.
Hunter Biden avoided prison. Hillary Clinton never had to go to trial. Donald Trump, if justice is not nullified, will not get off easy. But don’t tell me the odds are 100% for conviction.
Follow Steve on Twitter @stevengberman.
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