Donald Trump could not get a fair trial in Manhattan. Not only did the overwhelming majority of Manhattan voters cast ballots against Trump, many of them would refuse to talk to someone who did. That’s how high the passions against Trump are today in the city that would be the locus of an indictment against the former president and current candidate for reelection.
These feelings are so strong that jurors might well be afraid of the repercussions to them if it were known they voted to acquit him at the trial. The same might be true of judges, who are elected in New York. I can attest to this based on my own personal experiences.
I voted against Trump twice, but because I defended his constitutional rights in the Senate, there are many people in New York who refuse to speak to me — or even my wife. It was worse on Martha’s Vineyard, where my wife and I were completely canceled by old friends who regarded me as a traitor for defending the Constitution on his behalf. They refused to accept the distinction between defending Trump’s rights and supporting him politically. I was deemed an “enabler” and a “facilitator” of Trump’s evil ways.
I suspect the same would be true with regard to jurors who may have voted against Trump for president but who would refuse to convict him of a highly questionable crime. Likewise, any judge who dismissed the case, would become the object of derision or worse. They too would be canceled by friends, business associates and even relatives, would be unwilling or unable to distinguish between a juror or judge doing their constitutional duty to provide a fair trial on the one hand, and a Trump supporter enabling the former president to be reelected.
These kinds of social and other pressures would make it difficult if not impossible for Trump to get a fair trial in Manhattan. Jurors and judges might well focus on the implications for them rather than the evidence and law. It is also likely that some jurors who don’t want to see Trump reelected will vote to convict in order to prevent what they would regard as a disaster from occurring. And they would probably not admit it during the selection process.
So what is the alternative? A change of venue to a part of New York that is more evenly divided between pro and anti Trump voters. Let’s be clear: very few people are neutral about Trump, and no one is unaware of his reputation and actions beyond the facts of this case. It is unlikely that the process will result in the selection of 12 jurors who are willing and able to be entirely neutral. So the only fair approach is to avoid a jury that is entirely one sided.
The question remains whether there is any city or town in New York State — the trial cannot be moved out of state — that fits this criteria? No one can be certain. But one thing is clear: Manhattan doesn’t. It is constitutionally imperative therefore to move the trial out of that Democratic stronghold. Staten Island is more closely divided, with a slight Republican edge. Westchester County has a majority of Democratic voters and an ever greater majority of Trump haters. Other upstate venues are more closely divided.
A judge considering a change of venue motion by Trump’s lawyer could seek expert advice regarding the demographics and party affiliations of potential jury pools throughout the state and try to come up with the best — or least worst — alternative. The prosecution will demand that the trial remain in Manhattan because the last thing they want is a fair jury and a neutral judge. They realize the prosecution would not stand a chance of winning if the law and the facts are applied fairly. This is one of the weakest prosecutions I have seen in the 60 years I have been teaching and practicing criminal law. Only a biased jury and judge could assure them victory, and a Manhattan trial would maximize that bias.
Fair trials are essential to the rule of law, but in our malignantly divided nation, too many people want fairness for me and my side, but not for thee and their side. This is especially so when it comes to the divider-in-chief, Donald Trump. His case promises to test our system of criminal justice more than most others. If we have any chance to pass this test, the first step must be a change of venue out of Manhattan.
Dershowitz, Felix Frankfurter Professor of Law, emeritus, is host of the DerShow on Rumble and is the author most recently of “Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.”
