Former President Donald Trump, frantic to avoid being judged by a jury of the very Americans affected by the violent riot of his attempted 2021 coup, keeps signaling a plan to somehow escape the clutches of Washington, D.C.—by transferring the case to the conservative confines of West Virginia.
It sounds petty and deeply unfair. And the request has already been ridiculed by legal scholars who’ve laughed at the idea that a former president can somehow wave his hand and move a case to a place that’s politically convenient.
But in theory, it could work.
“It’s a long shot, but it’s not frivolous,” said Henry H. Perritt Jr., the former dean of Chicago-Kent College of Law at Illinois Institute of Technology, where he is now professor emeritus.
“The notion that the original venue is not suitable is not a shocking idea. It’s provided for in federal rules,” said Perritt, who has written about the limits of law enforcement jurisdiction and the proper court venue for cases. “If the defendant can show that the prejudice is so great in the original venue that the defendant cannot obtain a fair and impartial trial, then the judge must transfer it to another venue.”
Trump initiated this discussion the day after he got indicted for defrauding the nation in a failed attempt to remain in the White House after losing the 2020 election. In a Truth Social post on Wednesday, he suggested that the case should be moved to “the politically unbiased nearby State of West Virginia!”
“NO WAY I CAN GET A FAIR TRIAL, OR EVEN CLOSE TO A FAIR TRIAL, IN WASHINGTON, D.C.” he followed up on one of his all-caps rages Sunday morning, later adding that his team would formally seek for a venue change—and even the judge’s recusal.
The thing is, this hasn’t worked for the MAGA diehards who angrily marched on the Capitol building on Jan. 6, 2021 at Trump’s behest and were later hunted down by the FBI and prosecuted by the Department of Justice.
In the 15 months after the insurrection, nearly 800 participants were arrested for trespassing on government property or trying to interrupt the certification of electoral ballots, according to the public statements by the DOJ. CBS News undertook an extensive review of thousands of court documents and found that only a dozen or so tried moving their trials out of the nation’s capital by citing jury bias, and not a single one managed to pull it off as of April 2022.
A look at their failed attempts proves instructive.
It didn’t work for Thomas Caldwell, a Navy veteran in his late sixties who showed up wearing an Oath Keepers militia T-shirt and was charged with seditious conspiracy. His lawyer, David W. Fischer, wrote to the judge that “jurors outside of the D.C. media market will have far less exposure to the non-stop biased and prejudicial press coverage.” Federal prosecutors countered that “extensive pre-trial screening… will suffice to ensure that defendants receive a fair trial by an unbiased jury.” They also cited Article III of the U.S. Constitution, which plainly states that “the trial of all crimes… shall be held in the state where the said crimes shall have been committed.”
U.S. District Judge Amit P. Mehta was utterly unconvinced by the insurrectionist’s arguments.
“Caldwell has not put forth a scrap of evidence to support his claims of jury bias, and his motion to transfer venue is denied without prejudice,” Mehta wrote.
But importantly, he hinged his decision on the idea that the average D.C. juror wouldn’t have a clue who Caldwell was, noting that there wasn’t “any proof that the residents of the District of Columbia have any preconceived notions about Caldwell specifically, let alone that anything about him has been ‘seared into the minds of potential D.C. jurors.’”
By contrast, Perritt said, that judicial reasoning doesn’t apply to Trump; he may have more preconceived notions than anyone else in the world—and has been widely labeled the main orchestrator of the entire attack.
“When it’s been denied, the reasoning had to do with the fact that, even though the publicity might have been prejudicial as respect to the riot, the publicity was not focused on this defendant. Publicity has very much been focused on him,” Perrit said.
Then again, with someone as divisive as Trump, it’s reasonable to expect that people’s opinions of him are already solidified in West Virginia, too. Indeed, Trump’s very reason for choosing West Virginia over Maryland or Virginia—or even, say, Pennsylvania or New Jersey—is that he won West Virginia by nearly 30 points.
As far as the law goes, there’s also the case of Sean McHugh, a California construction worker who sprayed an unknown substance at police protecting the Capitol while yelling at them “You’re protecting communists!” and: “There is a Second Amendment behind us, what are you going to do then?”
In court documents, his lawyers compared Jan. 6 news coverage to that of the Sept. 11, 2001, terrorist attack and whined to the judge about how the attackers were labeled “insurrectionists,” “rioters,” and “seditionists.” Defense lawyers also noted that “an overwhelming number of District of Columbia residents—over 92 percent—voted for President Biden,” citing the same argument that can be expected of Trump down the road in his own case.
Once again, prosecutors cited the Constitution. They also pointed out that the D.C. federal appellate court had already rejected the argument that the nation’s left-leaning capital would be unfair to a Republican—back in 1976 in a case related to Nixon’s Watergate scandal.
In March, U.S. District Judge John D. Bates decided to keep the case in Washington. The very next month, McHugh decided to skip a jury trial, took a partial plea, and the judge found him guilty at a one-day trial.
That case also shows how a judge could reasonably conclude that Trump would be treated fairly in D.C., particularly because the American legal system is built on the fundamental concept that a person should be judged by their local peers, who are best suited to consider the specific accusations at hand.
But in what may come as a surprise, Professor Perritt said this centuries-old core concept is one that’s increasingly becoming outdated.
“The notion that you should be tried by a jury of your peers in the area where a crime was committed comes from an earlier time when jurors were expected to know the facts already. There wasn’t as much reliance on witnesses. You empanel a jury, and they knew what happened. So you kind of turn things over to them,” he said. “That’s not thought to be the role of the jury anymore.”
Hence, why defense lawyers occasionally succeed in changing the venue of a trial from one state to another.
But the best example might be that of Alabama body-shop owner Russell Dean Alford, who walked into the Capitol through already-broken doors and later posted on social media videos and photos of himself at the scene of the crime. He too tried to change his case’s venue—and was swiftly rejected by U.S. District Judge Tanya S. Chutkan, the very same person now overseeing Trump’s case.
She wasn’t swayed in the slightest when Alford trotted out the same statistic noting that 92 percent of the District voted for Biden, calling it “misleading and ultimately unavailing,” and noted how unfair it is to have such little faith in Americans tasked with doing their civic duty.
“Jurors’ political leanings are not, by themselves, evidence that those jurors cannot fairly and impartially consider the evidence presented and apply the law as instructed by the court,” she wrote.
Chutkan also said moving the case out of D.C. wouldn’t mean jurors would be unaware of Jan. 6 or have no opinions on the matter.
“In any U.S. jurisdiction, most prospective jurors will have heard about the events of January 6, and many will have various disqualifying biases,” she added.
The jury ultimately found Alford guilty on all three counts, and Chutkan sentenced him to a year behind bars at an Alabama federal prison.
John Lauro, one of Trump’s two defense lawyers on this case, made clear this weekend that they are dead set on requesting a venue change outside the beltway—but not just yet.
“We are… at the appropriate time,” Lauro said on the legal podcast For the Defense with David Oscar Markus.
Lauro said his team plans to do “some hard, quantitative analysis on where people are and what the venue looks like,” but then immediately noted that Washington, D.C., “went 95 percent for Joe Biden,” which sounds like they’re going to cite the same statistics that failed to convince other federal judges at the E. Barrett Prettyman courthouse.
However, Lauro indicated that the team’s request to change venue will focus heavily on more counterintuitive logic: the idea that the people who live in the nation’s capital are somehow ill-suited to the task, because they were so deeply impacted by the insurrection in their own hometown.
“The political piece is in play to some extent, but… it’s more of whether or not you’re facing this roadblock of bias, and whether the community in which you’re trying the case has been affected in an emotional or passionate way, which certainly Washington, D.C., was,” he said.