When E. Jean Carroll won her defamation and sexual abuse lawsuit against Donald Trump earlier this month, Republicans knew exactly who they wanted to blame. No, not Trump’s defense attorney, who called no witnesses and offered no evidence in his client’s defense. No, not Trump, who keeps undermining his weak denials of the crime by bragging about how guys like him “historically” and “fortunately” get away with sexual assault. No, they blamed the jury.
“That jury’s a joke,” huffed Sen. Marco Rubio, R-Fla., or as Trump called him during the 2016 primary, “Little Marco”. Sen. Tommy Tuberville, R-Ala., echoed the same claim, grousing about “a New York jury,” as if it’s preposterous to try a case in the same jurisdiction where the crime actually happened. Sen. Rick Scott, R-Fla., also took a swipe about the “New York jury.”
As Carroll’s attorney pointed out repeatedly, of the 9 jurors, 6 were men and only 2 even lived in the city, with 7 hailing from more conservative suburbs. Plus, it’s notoriously difficult for sexual abuse victims to get fair hearings in court, not perpetrators. As all these lying Republicans are no doubt aware, Trump lost the case for the simple reason that he’s extremely guilty, and could barely be bothered to pretend otherwise.
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These swipes at the unanimous jury should not be shrugged off as just another example of Republicans saying some fool thing to get them through the next 5 minutes of the current Trump scandal. This is quite likely not the end of juries weighing in on Trump’s crimes. He’s already been indicted on nearly 3 dozen counts of financial crimes in Manhattan, making him the first former president ever to be arrested. He’s likely to be indicted for election crimes in Georgia over the summer. Plus, Jack Smith, the special prosecutor appointed by Attorney General Merrick Garland, has intriguing grand jury investigations into Trump’s theft of classified documents and, of course, his attempted coup after losing the 2020 election.
In the face of this, there’s good reason to believe GOP comments in the wake of Carroll’s victory were a test run for their next big talking point: That juries have no credibility. After years of attacking voters and election systems as illegitimate for rejecting Trump, denying the legitimacy of the jury system is only the next logical step for Republicans.
The “juries don’t count” argument got advanced dramatically this week with the ridiculous “report” released by John Durham, a special prosecutor appointed by the Trump administration. Durham has spent years and millions of taxpayer dollars trying and failing to concoct something evidence-shaped to justify Trump’s false claims that a FBI investigation into his campaign’s ties to the Russian government were a “witch hunt.” Durham’s new report was also, to quote former federal prosecutor Andrew Weissmann, “a big, fat nothing.” Even the New York Times, always eager to handicap Republican scandal-mongering efforts to seem “balanced,” went with the headline, “After Years of Political Hype, the Durham Inquiry Failed to Deliver.“
As Heather “Digby” Parton points out, “unlike Durham, the special counsel investigation that grew out of the FBI’s original investigation successfully convicted a whole bunch of people for crimes they uncovered.” Paul Manafort, Trump’s campaign chairman, did time for his role. Ten other men who worked with or for the campaign were also convicted. A Senate investigation into the alleged Trump-Russia conspiracy uncovered even more evidence. As Digby wrote at the time, “the Trump campaign was crawling with Russians, many more than is commonly realized, and the evidence strongly indicates that any intelligence or law enforcement officials who didn’t look into this bizarre circumstance would have been derelict in their duty.”
Durham’s efforts to uncover a “deep state” conspiracy against Trump, however, didn’t just fail to turn up evidence. In his zeal, he did manage to get his allegations before juries twice. Both times, the unanimous juries of 12 people resoundingly rejected Durham’s claims. It’s worth remembering that federal prosecutors have around a 97% conviction rate, casting Durham’s failures into an even more comical light.
But despite the fact that his colleagues have no problems getting their cases through a jury system, Durham decided the problem wasn’t his own failure in trying to turn a Trump-tweeted conspiracy theory into something real. No, he blames the two juries who wouldn’t play along.
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“Juries can bring strongly held views to the courtroom in criminal trials involving political subject matters,” Durham writes, “separate and apart from the strength ofthe actual evidence and despite a court’s best efforts to empanel a fair and impartial jury.”
Durham’s pseudo-reasonable language shouldn’t fool anyone. Yes, it’s true that politics can prejudice a jury. But it’s a massive stretch in these two cases. The defendants aren’t famous politicians, nor were their cases touching on major culture war hot buttons. It was just “lying to the FBI” charges, and Durham failed to prove it. The only person getting political up in here was him.
In other parts of the report, as Aaron Blake of the Washington Post detailed, Durham flat-out rejects the jury verdicts. He targeted the defendants for sharing information about Trump to private investigators, accusing them of lying about it when questioned by the FBI. Even though both men were acquitted, Durham continues to write about them as if they were guilty and it’s the 24 jury members, not himself, that screwed up. Multiple legal experts told Blake this is unethical and could violate American Bar Association ethics standards. Stanford University law professor Robert Gordon simply said Durham is “whining.”
Whining is the lingua franca of Trumpists faced with facts that run against their conspiratorial narratives, of course. This flavor of whining, however, is doubly sinister, because it’s a member of the DOJ leveraging his status to discredit the jury system, simply because these two juries wouldn’t be snookered by him. Worse, in doing so, he’s helping stoke what is quite likely to be a growing MAGA assault on the foundational concept of due process.
The anti-jury grumblings of the MAGA right have only just begun, and already the impacts are alarming. Jurors in Carroll’s case were kept under anonymity rules usually reserved for Mafia trials, to protect them against MAGA violence. Personalized attacks on grand jurors have kept Manhattan D.A. Alvin Bragg busy filing motions to prevent Trump from directing violence their way. In Georgia, law enforcement is prepping months in advance to protect grand jurors from MAGA violence. One of the jurors in the Proud Boys sedition trial was so afraid she was being followed by MAGA goons that the judge had multiple hearings just about that, compelling other jurors to take photos of strange people they saw in hopes of figuring out if her concerns were justified.
Trump gleefully ruins the lives of real people in his efforts to discredit democratic institutions that get in the way of his criminal impulses. One of the most compelling witnesses to testify before the January 6 House committee was Shaye Moss, an election worker who, along with her mother Ruby Freeman, became the center of Trump-driven conspiracy theories about the 2020 election. Moss was photographed taking a mint from her mother, which was used as an excuse by Trump lawyer Rudy Giuliani and other MAGA monsters to spread wild lies that the two women were changing votes. Moss has since been driven from her home and suffered both mental and physical health effects from the torrent of threats.
No system is perfect, and juries are certainly made up of fallible human beings. But the reason Republicans are already sowing seeds of anti-jury sentiment is not because they believe juries will get it wrong — they’re afraid juries will get it right. Carroll’s case is just the latest in a long line of juries, including those in Durham’s B.S. cases, getting it right. Juries also convicted the Proud Boys and the Oath Keepers for their role in the January 6 insurrection. Juries ruled against Alex Jones in defamation cases filed by the parents of Sandy Hook shooting victims. Mere fear of a jury caused Fox News to settle a defamation case with Dominion Voting Systems. MAGA lies tend to falter when placed in a regulated court situation, in front of a jury of everyday Americans. That’s what Republicans are afraid of, and why they’re already training their followers to parrot “juries are worthless” talking points.