Donald Trump was unable to get a fair trial in Manhattan. The overwhelming majority of Manhattan voters not only voted against Trump, but many of them refused to speak to anyone who did. This is how high passions against Trump are today in the city that would be the locus of an accusation against the former president and current candidate for re-election.
These feelings are so strong that jurors might well fear the repercussions if it were known that they voted for his acquittal at trial. The same could happen with the judges, who are chosen 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 talk to me, or even my wife. It was worse on Martha’s Vineyard, where my wife and I were completely written off by old friends who considered me a traitor for defending the Constitution in her name. They refused to accept the distinction between defending Trump’s rights and supporting him politically. I was considered an “enabler” and an “enabler” of Trump’s evil ways.
I suspect the same would be true of jurors who may have voted against Trump for president but would decline to convict him of a highly questionable crime. Likewise, any judge who dismissed the case would become an object of ridicule or worse. They would also be canceled by friends, business associates, and even family members, unwilling or unable to distinguish between a juror or judge fulfilling their constitutional duty to provide a fair trial, on the one hand, and a Trump supporter allowing that the former president be re-elected.
These types of social and other pressures would make it difficult, if not impossible, for Trump to have a fair trial in Manhattan. Jurors and judges might as well focus on the implications for them rather than the evidence and the law. Some jurors who don’t want to see Trump re-elected are also likely to vote to convict him in order to prevent what they would consider a disaster from happening. And they probably wouldn’t admit it during the selection process.
so what is the alternative? A change of venue to a part of New York that is more divided between pro and anti-Trump voters. Let’s be clear: very few people are neutral about Trump, and no one is ignorant of his reputation and his actions beyond the facts of this case. The process is unlikely to result in the selection of 12 jurors who are willing and able to be completely neutral. So the only fair approach is to avoid a jury that is completely one-sided.
The question remains whether there are any cities or towns in New York State (the trial cannot be moved out of state) that fit this criteria. No one can be sure. But one thing is clear: Manhattan is not. Therefore, it is constitutionally imperative to remove the trial from that Democratic stronghold. Staten Island is more divided, with a slight Republican lead. Westchester County has a majority of Democratic voters and a growing majority of Trump haters. Other upstate locations are more closely divided.
A judge considering a motion to change venue by Trump’s lawyer could seek expert advice regarding the demographics and party affiliations of prospective jurors across the state and try to find 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 that the prosecution would have no chance of winning if the law and facts were applied fairly. This is one of the weakest prosecutions I have seen in the 60 years that I have been teaching and practicing criminal law. Only a biased jury and judge could assure them victory, and a trial in Manhattan would maximize that bias.
Fair trials are essential to the rule of law, but in our wickedly divided nation, too many people want justice for me and my side, but not for you and your side. This is especially true when it comes to the splitter-in-chief, Donald Trump. His case promises to test our criminal justice system more than most. If we have any chance of passing this test, the first step must be a change of venue outside of Manhattan.
Dershowitz, Felix Frankfurter Professor of Law, emeritus, is host of the DerShow at Rumble and is the most recent author of “Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.”
