CORRECTED ARTICLE: Why Jack Smith Should Agree to a Change of Venue in the Jan. 6 Prosecution

Sometime in the near future, Donald Trump’s attorneys will file a motion for a change of venue in the Jan. 6 conspiracy prosecution in Washington D.C. Authority to transfer a case to another district is found in Federal Rule of Criminal Procedure 21(a) which states that if a criminal defendant requests a transfer of venue and demonstrates that “so great a prejudice against the defendant exists in the [original] district that the defendant cannot obtain a fair and impartial trial there,” a court must transfer the defendant's trial to a different district.

          In trying to satisfy this rule they will face an uphill battle. Venue is properly laid in Washington since most of the events detailed in the indictment occurred there. Although the residents of Washington have been exposed to significant prejudicial publicity in the papers and on social media, that alone is not sufficient grounds to warrant moving the case under controlling case law; nor is the fact that part of the indictment alleges former President Trump’s involvement in an effort to overturn a legitimate election through violence; or that a mobbed attacked one of our most hallowed institutions and endangered the lives of our representatives; or that Capitol Hill police died as a result of the mob’s actions. In the Boston Marathon Bombing, Boston and its residents were also under attack, this time by terrorists, and far more people died and were injured.

          Nevertheless, I believe that a change of venue should be granted, although not to Trump’s venue of choice, West Virginia.

          1.  The Case Law Disfavors A Change Of  Venue  And Trump Will Face An Uphill Battle Trying To Convince The Court To Grant His Motion

         a. The Law Begins and Ends With Skilling

                    (i) The Enron Debacle

          In 2013, Bethany McLean and  Peter Elkind published “The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron.” As it turned out, the three principal guys running the massive energy company weren’t all that smart. Kenneth Lay was indicted but died before he could be tried, Andrew Fastow pled guilty, and Jeffery Skilling went to trial and was convicted of a variety of offenses including securities fraud, wire fraud, making false representations to Enron's auditors, insider trading, and conspiracy to commit securities and wire fraud which count was later overturned by the Supreme Court. Skilling v. United States, 561 U.S. 358, 369, 130 S. Ct. 2896, 2908 (2010)

          Enron was a major cluster…bomb for its investors, the citizens of Houston, and one company in particular, Arthur Andersen, which like Enron went out of business and threw some 28,000 people out of work. Individual investors, pension funds, and institutional investors suffered massive financial losses, and thousands of Enron employees lost their jobs.

          Ten years before “The Smartest Guys in the Room…” was published, and seven years before Skilling’s trial, I had figured out that Skilling was not that bright. In 2002, after Enron cratered, Skilling went before Congress and testified that he lacked any knowledge of illegal activity at Enron and certainly had not participated in any.

          For some reason, I was at home and I saw some of that testimony. While I did not know that he was lying, I understood one fact: Skilling was testifying under oath, while he was being investigated by the feds. How could his lawyers have let him testify?

          The three’s accounting and securities fraud machinations, while fascinating, aren’t necessary to understand for this discussion. What is necessary to know is that Skilling appealed all the way to the High Court the trial judge’s denial of his motion for a change of venue.

          Houston and its residents suffered significant revenue losses when Enron went bankrupt. Not surprisingly, each development in the case was covered extensively by the press. Just three weeks before the trial, there was a major development when one of Skilling’s co-defendants, another major player in the scheme, pled guilty. Most of the reports were factual, but some commentary was not, and that commentary was damning.

          Skilling sought to demonstrate that he could not get a fair trial by submitting hundreds of news reports detailing Enron's downfall and affidavits by experts who compared community attitudes in Houston in comparison to other potential venues. Skilling 561 U.S. 369–70, 130 S.Ct. 2908. Skilling relied on three earlier cases decided by the Supreme Court that had held that the trial court erred in not transferring the case to a different venue.

          The Supreme Court rejected the comparison to these cases. In each of these instances, the community where the trial occurred was a fraction of the size of Houston. And in one case, the circumstance were far more egregious: on three occasions shortly before the trial, a local TV station broadcast a film of the defendant confessing to robbery, kidnapping, and murder while in police custody. Skilling at 379, 2914. Moreover, the Court stated that none of its cases stood for the proposition that, “juror exposure to ... news accounts of the crime ... alone presumptively deprives the defendant of due process.” Skilling at 380, 2914. “[A]lthough news stories about Skilling were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight.” Id. at 382, 2916.

          The Court then addressed whether there was any evidence that the prejudicial publicity caused the persons who were selected for the jury to be prejudiced against Skilling. The Court held that the selection process employed by the court (including the use of a jury questionnaire provided to the venire in advance of the trial and individual voir dire regarding pretrial publicity) “successfully secured jurors who were largely untouched by Enron's collapse.”  Skilling at 389, 2920. 

          The Supreme Court’s decision in Skilling is understandable when you consider that the crimes charged were not sensational in the way a gruesome murder in a small city is. And jury selection demonstrated that in a large enough community, one can find jurors ignorant of the facts, who have no opinion about the defendant.  

                    (ii) Evidence of Prejudice Against the Jan. 6 Defendant’s

          Elmer Rhodes, one of the defendants who entered the Capitol during the Jan. 6 insurrection, presented survey research in support of his motion to transfer his case to the Alexandria Division of the Eastern District of Virginia. This is what that research showed:

·      91% of District respondents who answered four questions designed to test prejudicial prejudgment answered at least one of those questions affirmatively, while other surveyed jurisdictions recorded percentages ranging from 49% to 63%, id. at 2;

·      (2) among District respondents to the survey, 72% said that they are “likely to” convict even when given the choice to respond “It is too early to decide,” whereas the median of the survey was 48%, id. at 3;

·      (3) 82% of District respondents who answered each personal impact and victimization question indicated “high levels of personal impact and perceived victimization caused by the Events of January 6th,” id. at 4;

·      (4) respondents in the other jurisdictions were more likely to avoid exposure to January 6th news coverage and had a higher rate of potential jurors who said they were “never or almost never” exposed to such media coverage, id. at 5; and

·      (5) although District respondents answered that they could be fair and impartial at a higher rate than those in other jurisdictions, In Lux Research opined that “this representation may actually indicate a failure to recognize or admit threats to fairness and impartiality,” id. at 5. The other surveys similarly suggest that District of Columbia residents harbor traits of juror bias against January 6th defendants. See Select Litigation Survey at 3 (“[A] majority of jury-eligible residents of the District of Columbia (52%) admit ... that if they were ‘on a jury for a defendant charged with crimes for his or her activities on January 6th,’ they would *57 be more likely to vote the defendant ‘guilty.’ ”); Zogby Strategies Survey at 3 (“Nearly 3 out of 4 respondents (73%) believe that any individual who was inside the Capital on January 6, 2021 should be convicted of insurrection.”).

United States v. Rhodes, 610 F. Supp. 3d 29, 57 (D.D.C. 2022).

          The District Court rejected Rhode’s contention that this evidence demonstrated that Rhodes could not get a fair trial in Washington. The court was particularly perturbed with the pollster’s efforts to explain away the finding that “District respondents answered that they could be fair and impartial at a higher rate than those in other jurisdictions.”

But that is at best pure conjecture, and at worst an intentionally contrived theory meant to explain away an unfavorable finding. Indeed, the survey administrators allow for no possibility that the very opposite could be true: District residents in fact can put aside their feelings and decide cases in a fair and impartial manner based on the evidence presented.

Id. at 58. The court also noted that voir dire in the other Jan. 6 prosecutions was successful in selecting an unbiased jury. This passage from Judge Mehta’s opinion will be particularly troublesome for Trump’s counsel to address:

In the end, the appropriate way to identify a biased juror pool is through voir dire. See Haldeman, 559 F.2d at 63. Still, Defendants attempt to cast doubt on the capacity of the voir dire process to identify fair and impartial jurors. But “if an impartial jury actually cannot be selected, that fact should become evident at the voir dire.” Id. Defendants remain free to renew their motion to transfer during or following the voir dire process.

Id. at 59 (D.D.C. 2022).

          In each case where Jan. 6 defendants sought a change of venue, the court held that under Skilling, voir dire is the best method of determining whether an unbiased jury could be selected in the venue. United States v. Ballenger, No. CR 21-719 (JEB), 2022 WL 16533872, at *1–4 (D.D.C. Oct. 28, 2022).

          Trump’s lawyers will likely argue that the amount of prejudicial publicity against Trump is an order of magnitude greater than the publicity surrounding the Jan. 6 insurrectionists. Presumably, they will introduce hundreds of articles appearing in the Washington Post and social media. They will have to finesse Trump’s own appearances in the media which reached millions of Americans with his message that he was innocent of all wrongdoing, that the prosecution was a witch hunt, and that it was politically motivated. They may have to convince Judge Chutkan that Trump did not exacerbate the problem through his own public statements.

          (B) The Boston Marathon and First World Trade Center Bombings

          The government will no doubt argue that courts in far more sensational cases have denied motions for a change of venue. In support the government will cite In re Tsarnaev, 780 F.3d 14 (1st Cir. 2015) and United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003). In Tsarnaev the First Circuit upheld the district court's denial of a venue change in the prosecution of the Boston Marathon bomber, whose actions killed three, injured hundreds, and resulted in a shelter-in-place order. In Yousef the Second Circuit upheld the denial of venue transfer in the prosecution of the s1993 World Trade Center bombers, whose actions killed six and injured thousands.

          How can Trump argue that the people of Washington are more likely to be biased and prejudiced against him than those in New York and Boston were against terrorists who killed people and traumatized the city when the events occurred?

           2. When the Government Agreed to a Change of Venue—the Oklahoma City Bombing

         On April 19, 1995, as I was driving a rental car to Terre Haute, Indiana to visit a client at the United States Penitentiary, Terre Haute (USP Terre Haute) a report came over the radio that the federal courthouse in Oklahoma City had been bombed and that the fate of the children in the daycare facility there was unknown. I prayed that they would be alive. I am sure thousands of others who heard this report did too. It was not to be. A total of 168 men, women, and children died when the Alfred P. Murrah Federal Office Building was destroyed.

         Timothy  McVeigh and Terry Nichols were shortly afterward apprehended and charged with murder. United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996)

         To no one’s surprise, the two defendants, Timothy  McVeigh and Terry Nichols, moved for a change of venue. To almost everyone’s surprise, the motion was granted and the Department of Justice decided not to appeal the decision.

         Although the court’s ruling came before Skilling was decided, the court addressed the same considerations that the Supreme Court thought important in Skilling. Judge Match considered the amount and nature of the prejudicial publicity, the size of the community, and how much time had passed since the bombing, and noted:

Ordinarily, the effects of pre-trial publicity on the pool from which jurors are drawn are determined by a careful and searching voir dire examination. That is the preferred practice in this judicial circuit.

Id. at 1470.

         However, the court, a former trial lawyer himself, also observed:

The prejudice that may deny a fair trial is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evidentiary facts resulting from an attribution to something not included in the evidence.

Id. at 1472.

         Ultimately, Judge Match held that there was:

[S]o great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state.

United States v. McVeigh, 918 F. Supp. 1467, 1474 (W.D. Okla. 1996)

         Had Judge Match ruled against the defendants, his order would not have been overturned. This was his call to make. But it is possible that had the government appealed Judge Match’s order, the Tenth Circuit would have remanded the case for further consideration. This is because the ruling suffered from a major flaw. Judge Match did not explain why voir dire would be insufficient to identify those prospective jurors who could not give the defendants a fair trial.

         But the government did not appeal his order and the trial was moved to Denver. Why Denver? According to the court:

          Denver, Colorado meets all of the criteria that have been cited by past cases as relevant when selecting an alternative venue. See e.g., United States v. Tokars, 839 F.Supp. 1578 (N.D.Ga.1993); United States v. Moody, 762 F.Supp. 1491 (N.D.Ga.1991). Denver is a large metropolitan community with many community resources. It is readily accessible, being well-served by daily non-stop flights from all relevant cities. The court facilities in Denver are well-suited for accommodating the special needs of this trial. The United States Marshal for the District of Colorado is well-equipped to provide adequate security services. A large jury pool is available.

United States v. McVeigh, 918 F. Supp. at 1474.

          Whether to appeal Judge Match’s ruling, was vigorously debated by the leadership of DOJ. At that time, Merrick Garland, who was one of AG Janet Reno’s deputies, had been tasked with coordinating the government’s massive investigation after the bombing. Garland advocated for the relocation of the trial to Denver to avoid accusations of a spoiled jury. Tom McCarthy, “Merrick Garland's 'flawless' work in Oklahoma City crucial in white supremacy fight,” The Guardian, Feb 1, 2021, https://www.theguardian.com/us-news/2021/feb/01/merrick-garland-oklahoma-city-timothy-mcveigh-attorney-general.

          Garland’s argument reflected his belief that the jury’s verdict would have ramifications far beyond its effect on the families of the victims and the citizens of Oklahoma. “The prosecution came two years after the FBI siege at the Branch Davidian compound in Waco, Texas, a disaster for the government, in which 76 people died.” Id. As Deputy Attorney General Jamie Gorelick, Garland’s boss, observed twenty-one years later:

Imagine if we had gone into Oklahoma City in a way that made us look like jack-booted thugs," Gorelick said. "That's what people thought of us after Waco. That's what was motivating Tim McVeigh, he says. We would have had a vastly different result — not just in the case — but in the country.

Nina Totenberg, “Out Of The Horror In Oklahoma City, Merrick Garland Forged The Way Forward,” NPR, April 19, 2016, https://www.npr.org/2016/04/19/474689286/out-of-the-horror-in-oklahoma-city-merrick-garland-forged-the-way-forward.

         3. Why the Special Prosecutor Should Not Oppose Trump’s Motion for Change of Venue.

          Garland has insisted that he is staying out of Jack Smith’s way. He is smart enough to understand that Smith knows what he doing when it comes to obtaining a conviction of Trump and that any effort to micro-manage Smith will do far more harm than good. But the issue of venue is as much a political one as it is legal.  

          There are millions of Americans who support Donald Trump and will vote for his reelection. They may get most of their news from Fox, but they are not right-wing ideologues. They are everyday people who believe the Democratic Party has taken the nation in the wrong direction and has ignored their interests for two generations. Unless Justice Roberts permits the trial to be televised, these people will not see the jury selection. They will only know what their slice of social media reports and they already believe that over 90% of the residents of Washington hate Trump.  If these people believe that the jury was biased against Trump, they will not believe that the verdict is legitimate and that will undermine respect for the rule of law. Garland knows this and while he cannot order Smith to agree to a change of venue, Smith should not ignore Garland’s opinion in this matter.