How Renegade Juries Could Help Thwart Trumpian Misrule

On the eve of the second Trump administration, the president-elect has already signaled his intention to pursue prosecutions of some of his political enemies, such as President Joe Biden, former Congresswoman Liz Cheney, Congresswoman Nancy Pelosi, Manhattan District Attorney Alvin Bragg, and others. In addition to these specific threats, Trump has discussed prosecuting the “enemy from within,” referring to Democrats more broadly—both politicians and regular people. Trump’s nominee for FBI director, Kash Patel, is widely seen as eager to turn Trump’s vindictive fantasies into reality.

Republican governors and legislatures are also criminalizing behavior counter to their policy preferences. Multiple women have been prosecuted for abortions and miscarriages under wrongful death laws, and some states are debating whether to legally classify abortion as murder. In some red states, librarians face the prospect of criminal charges for circulating banned books. In several states, doctors can face criminal charges for providing gender-affirming care.

With the very real prospect of malicious and unjust prosecutions on the horizon, it is important for jurors to understand the power they have in preventing these and other injustices through nullification. However, judges have made it extremely difficult for juries to gain the knowledge they need to use that power. Even though the first chief justice of the U.S. Supreme Court, John Jay, affirmed the legality of jury nullification, successive courts have erected significant barriers to prevent its use. Defense attorneys are generally not allowed to mention the option of nullification, potential jurors can be stricken for mentioning nullification during voir dire, and judges can give jury instructions suggesting that nullification is not allowed.

Despite these challenges, jury nullification remains a viable option for resisting unjust prosecutions. At a time when essential human rights like bodily autonomy are under attack, immigrants face deportation on trumped-up charges, and the incoming government has threatened to use its vast power to punish undesirable citizens, it is easy to feel powerless. However, at least in these high-stakes circumstances for criminal defendants, the people retain the power to fight back and protect the freedom of their fellow Americans. Now more than ever, people of conscience should resist the urge to avoid jury duty, keep their mouths shut during voir dire, and talk to fellow jurors about nullification to prevent miscarriages of justice.

https://newrepublic.com/article/189451/trump-jury-nullification-bulwark-misrule