Editor’s note: Readers may also be interested in Adam Klasfeld’s Daily Dispatches from the Trump Trial Courtroom in New York. Klasfeld’s reporting is part of Just Security’s Trump Trials Clearinghouse.
Call it the criminal defense strategy that must not be named.
As former President Donald Trump begins his historic criminal trial in New York — one he has tried to delay or stop nearly a dozen times — there is a centuries-old tactic that could prevent a guilty verdict on all 34 felony charges even if jurors believe that prosecutors proved their case beyond a reasonable doubt. That gambit is called jury nullification, and in most jurisdictions, it would be controversial to even call it a defense. It involves inviting jurors to acquit a defendant, no matter what the evidence may show, and it has a history in some politically charged cases, from Jim Crow-era segregation prosecutions to civil disobedience during the Vietnam War.
Technically, it is forbidden under New York law, but that prohibition is practically difficult if not impossible to enforce.
There is no direct evidence that Trump’s legal team intends to employ that strategy at his upcoming criminal trial in New York. Rather, Trump’s attorneys have, for months, appeared to recognize the prohibition against this approach. In February, they effectively promised the judge in writing that they do not plan to tell a jury that Trump is being selectively prosecuted, despite the former president making that claim countless times in political rallies, press conferences and on social media.
The district attorney wrote, “The Court should preclude defendant from presenting argument and introducing evidence of purported selective prosecution at trial because … any selective prosecution argument at trial would serve no purpose other than to advance an improper jury nullification defense.”
To eliminate any confusion, Manhattan Supreme Court Justice Juan Merchan issued a ruling barring the lawyers from making that argument at trial.
If recent reporting in The New York Times is accurate, Trump’s legal team may be hoping to empanel jurors inclined to reject the legitimacy of the legal system, and only one such candidate would be needed to wreak havoc on the prosecution’s case.
Why Trump’s Lawyers Could Concede the Documents Look Damning
To advance a nullification argument, the defense may effectively concede that the evidence could show a crime, and one report suggests that Trump’s lawyers are considering such an admission.
Trump has been charged with 34 felony counts of falsifying business records, in order to cover up his alleged sexual encounter with pornographic film actress Stormy Daniels before the 2016 presidential election. That makes much of the prosecution a “documents” case, in which prosecutors say each record falsely shows “hush money” and other payments disguised as “legal fees.” (Read more about how prosecutors say Trump falsified 11 invoices, 11 checks, and 12 ledger entries here.)
With those documents available to the jury in black and white, Politico reported that Trump’s legal team is considering essentially admitting that their client violated the statute in its misdemeanor form — effectively conceding a more minor charge that the records were false. Whether each of those crimes becomes a felony turns on a more contentious issue: prosecutors’ allegation that Trump cooked the books in order to “corrupt” a presidential election, a claim at the heart of the case. Prosecutors may also argue that Trump intended to carry out tax crimes.
According to Politico, on this approach, Trump’s attorneys will still ask the jury to reject the notion that the former president acted with an intent to defraud and conceal another crime: namely, to violate federal and state elections laws and New York’s tax fraud statute. To achieve this, Trump’s lawyers reportedly would have to request permission to steer the jury toward the misdemeanors, as “lesser included” offenses. There are several reasons Trump’s attorneys may consider such a strategy. Some completely legitimate. Misdemeanor convictions would eliminate any possibility of jail time, and their shorter statute of limitations may not even survive an appeal. But if nullification were on any juror’s mind, they could accept the invitation to convict on the misdemeanor charges and vote to acquit on the felonies even if they think the prosecutors proved both.
If pushed toward nullification, a juror can also clear Trump of even the more minor charges. Trump’s lead attorney Todd Blanche and campaign spokesman Steve Cheung did not respond to press inquiries on this subject.
Why Trump’s Legal Team Haven’t Embraced Nullification—Yet
Even though Trump and his attorneys have claimed the system is rigged against the former president at every turn, his legal team expressly disavowed any intention of actually arguing this in front of a jury.
“Defense counsel do not intend to ask the jury to acquit President Trump based on ‘selective prosecution,’” Blanche wrote in late February, adding that posture included setting aside arguments that prosecutors “targeted him for prosecution in violation of the Equal Protection Clause of both the United States and New York State Constitutions.’”
Justice Merchan held Trump’s lawyers to that promise, forbidding them from raising selective prosecution arguments already rejected in a motion to dismiss. The judge also barred Trump’s lawyers from telling jurors that the former president’s indictment is “novel, unusual, or unprecedented.” At trial, they cannot allude to the “purported motivations or personal and professional backgrounds of the District Attorney,” nor can they cite “pre-indictment delay,” in the more than half-decade span between the lead-up to 2016 election to the historic felony charges. If Trump were to take the stand, the judge is likely to preclude the former president from making such claims from the witness box.
That Trump’s attorneys did not fight the judge on these points should not be surprising: New York law would not allow them to ask a jury to acquit on that basis. The state’s highest court made that principle clear in one of the most sensational cases in the Big Apple’s modern history: that of Bernie Goetz, the man who shot four Black teenagers on the New York City subway.
In 1988, the New York Court of Appeals found the “mercy-dispensing power” of nullification “is not a legally sanctioned function of the jury.” The judge’s instruction to the jury was that they “must” find him guilty, if they found he committed all of the elements of his crimes beyond a reasonable doubt. Goetz challenged his conviction based on that instruction, but the state’s top court found the judge made the right call.
Why Trump’s Jury Selection Strategy Could Tip His Hand
As jury selection approaches, the New York Times suggested that Trump’s legal team may be searching for jurors who may be receptive to those prohibited arguments.
Citing sources close to his legal team, the Times reported that Trump’s trial strategy involves persuading one or more holdout jurors to spur a mistrial by trying to empanel jurors cynical about the legal system.
“Mr. Trump’s lawyers want a jury that includes younger Black men and white working-class men, particularly public employees like police officers, firefighters and sanitation workers,” the Times reported. “Those who have had bad experiences with the legal system will also be prized by the defense, which has cast the case as politically motivated.”
There is a more innocent explanation: Trump’s lawyers, like most defense counsel, may be trying to empanel jurors who are inclined to be skeptical of the government’s claims. Then again, Trump’s public statements about all of his criminal cases amount to a multi-pronged attack on the legitimacy of the legal system. He routinely criticizes witnesses, jurors, judges, and prosecutors on social media, casting his legal troubles as an elaborate “witch hunt” engineered by President Joe Biden.
Though Trump’s lawyers indicated they would not make those arguments at trial, the former president’s public statements could seep into the consciousness of the jury pool. Prosecutors requested the gag order in the first place to “protect the integrity of this criminal proceeding and avoid prejudice to the jury.”
Legal experts believe that the judge will take that mission seriously.
“The judge will not allow the defense counsel to explicitly argue for jury nullification,” former federal prosecutor Mitchell Epner predicted, adding that the judge could sanction the lawyers and strike their statements for any violations.
The fight over Trump’s gag order has signaled the willingness of the former president — and, to a lesser extent, his lawyers — to snub court orders. Trump openly boasted on his website Truth Social that he would gladly go to jail, likening himself to Nelson Mandela, in order to keep criticizing the judge’s daughter in direct contradiction of the expanded gag order. Merchan has threatened to revoke Trump’s access to information about the identities of the jurors, if he flouts the gag order. Over the weekend, Trump issued statements that appear to defy the gag order.
Trump’s attorneys have bristled about one of the judge’s orders forcing them to seek permission before filing 11th hour pre-trial motions, and Merchan has suggested that they may have repeatedly defied it. The judge warned them that they could face sanctions if they keep doing so. Merchan fired a similar shot across the bow in his letter outlining jury-selection procedures: “Counsel is forewarned not to seek to expand the degree of intrusion beyond what is relevant and has already been approved.”
The letter also made clear that the judge will be on guard for attempts by Trump’s legal team to find jurors inclined for political reasons to sympathize with the former president. That’s not the purpose of jury selection, the judge noted.
“Such questions are irrelevant because they do not go to the issue of the prospective juror’s qualifications,” Merchan wrote on April 8. “The ultimate issue is whether the prospective juror can assure us that they will set aside any personal feelings or biases and render a decision that is based on the evidence and the law.”
Approving 42 questions, Merchan pointedly struck out some proposed examples by Trump’s legal team, seeking to ask jurors about their political affiliations, their campaign contributions, and more generally, whether they “like” the 45th president.
Judges typically instruct jurors in New York criminal cases that they “must” convict, if they find prosecutors have proven their case beyond a reasonable doubt. If any juror refuses to do so — or decides to acquit Trump, even if they believe he committed the crimes charged — there is little to nothing that the prosecution can do about that decision.
“Once a jury finds a defendant in America not guilty, they can never be tried again for that crime under the double jeopardy clause,” Epner added. “That’s not just a New York precept — although New York has a double jeopardy clause under its constitution. That’s a matter of federal constitutional law.”