George Washington University School of Law’s Program on Extremism has created an online resource for tracking the hundreds of criminal cases filed by the Biden Justice Department against United States citizens for their alleged actions on January 6th. The Administration has charged people from all 50 states, and as is reflected in the“Capitol Hill Siege” project archive, every case has been filed in the District of Columbia.
What all their legal sophistry cannot hide is that their demand to conduct trials in the District of Columbia ultimately comes down to a question of who they want as jurors.
This was far from inevitable. Despite the fact that the events on January 6th all culminated at the United States Capitol, according to federal court rules, not a single trial is required to take place in the District of Columbia. The rules do not require that the Department of Justice demand that trials regarding the events of January 6th take place in the District of Columbia.
Yet, in opposing a motion for change of venue filed by defendant Jenny Cudd, the Biden Justice Department is insisting that the trial take place in the District of Columbia. The rationale? Well, according to the DOJ, the Watergate trials took place in the District of Columbia, so why not the January 6th protest cases? The government argument is as follows:
Notwithstanding the fact ‘that Washington, DC is unique in its overwhelming concentration of supporters of the Democratic Party, as opposed to the Republican Party to which the defendants … belonged,’ and that roughly 80% of the voters in DC voted for the Democratic Party candidate when Nixon ran for president in 1968 and 1972, [citation omitted] the court declared that, ‘[n]ot without reason, the relevance of this information seems to have escaped the prosecution, the defendants, their counsel, and the trial court,” and that there was no legal support for the proposition “that a community’s voting patterns are at all pertinent to venue.’ [citation omitted].
The quoted language in the government’s opposition is taken from the appellate decision which upheld the conviction of Nixon Chief of Staff H.R. Haldeman for his crimes connected to the Watergate scandal.
What the Biden Administration won’t outright say, but what all their legal sophistry cannot hide, is that their demand to conduct trials in the District of Columbia ultimately comes down to a question of who they want as jurors. The DOJ wants a jury drawn from a pool of potential jurors that voted 92% to 5% in favor of now-President Joe Biden (in the 2020 presidential election, Biden received 317,323 votes in the District of Columbia; former President Trump received 18,586).
If DOJ denies that this interest is paramount in its tactics for winning trials against January 6th defendants, then let it prove that to be the case—it should agree that any defendant who wants to be tried by a jury of his or her peers can have his or her trial in the District Court for the Northern District of West Virginia located in Martinsburg, a mere 77 miles from the District of Columbia federal courthouse.
“JUSTICE” FOR DOJ ENCOMPASSES ONLY A JURY VERDICT AFTER PRESENTMENT OF ITS OF CASE
Why would Martinsburg, West Virginia (which voted resoundingly for Donald Trump in 2020) not serve the interests of the Biden Administration to see that “justice” is done? Remember that for the DOJ, “justice” is not delivered only in the form of convictions—“justice” is provided by a fair trial and the verdict of an impartial jury based on the evidence offered by the government without regard to the outcome. The government is not entitled to convictions from juries, no matter how righteous it believes its cause to be.
Let us quickly dispense with the legalities of the issue.
The Constitution of the United States, Article III. Section 2, Paragraph 3, provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…”
Federal Rule of Criminal Procedure 18, “Place of Prosecution and Trial,” states: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed…”
Federal Rule of Criminal Procedure 21, “Transfer for Trial,” states: “Upon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.”
The government is not entitled to convictions from juries, no matter how righteous it believes its cause to be.
The default position the law takes here is that a federal criminal trial should take place in the state and federal judicial district where the crime is alleged to have occurred. In some circumstances, pretrial publicity regarding the alleged crime may be such that a fair and impartial trial is not possible where the crime is alleged to have occurred. This is referred to as “presumed prejudice.”
In 1997, “presumed prejudice” was the basis upon which the trial of Timothy McVeigh, responsible for the 1995 bombing attack on a federal building in Oklahoma City that claimed 168 lives, was moved from Oklahoma City to Denver. In McVeigh’s case, the district court first considered whether to simply move the case from Oklahoma City to Tulsa, while remaining in the federal District of Oklahoma, but ultimately decided that all of Oklahoma was inundated with prejudicial pretrial publicity. The trial was moved to a different federal judicial district in a different state entirely in order to find an impartial jury to which McVeigh was entitled.
The attorney for Jenny Cudd, Alexandria-based Marina Medvin, filed a motion for a change of venue, asking that Cudd’s case be moved to the Southern District of Texas where she lives. Cudd stands charged with multiple crimes—including one felony—for her involvement in the January 6th protests.
On March 10th, the Washington Post covered the motion by claiming that Cudd was seeking a trial in a more “Republican-friendly” court:
An attorney for a woman who bragged in a Facebook live stream about storming the U.S. Capitol on January 6th asked a federal judge Wednesday to move her case from Washington to near her home in western Texas, saying a more Republican-friendly jury would decide her guilt or innocence more fairly.
The motion made no such reference, of course, only arguing that Cudd wants her constitutionally guaranteed right to a fair trial before an impartial jury, as guaranteed to her in the Fifth and Sixth Amendments to the Constitution. Medvin’s motion questions whether those rights can be afforded to her in the District of Columbia, where the jury pool is drawn from an electorate that voted so strongly in favor of President Biden.
The Post’s coverage should come as no surprise. The media coverage and partisan politics surrounding the January 6th protests have inaccurately tarred all those charged with the broad brush of “insurrection.” Cudd has been lumped in together with all the January 6th protesters under this “insurrectionist” banner, and as a result, is defined as being anti-Biden and pro-Trump. Whether that is accurate or not is beside the point. The government wants her to stand trial in the District of Columbia, where that will be presumed by virtue of her circumstance. That “outs” her a political opponent of the DC populace and a supposed “insurrectionist” against the Biden regime. Yet, she’s only charged with glorified trespassing. “What more must there be?” will be an ever-present question in the back of the jurors’ minds.
The prosecution has predictably opposed Cudd’s motion for a change of venue. The opposition papers waive off all concerns about the voting record of the District of Columbia as irrelevant. The fact that the District has a particular political predilection when it came to voting was deemed to be an insufficient justification in 1974 to move the Watergate cases, so the same rationale must prevail today, the government argues. Because Republican political officials—being prosecuted by Republican Ford Administration, by the way—were able to receive fair trials in DC then, the January 6th defendants will similarly be able to obtain fair trials in DC now.
The prosecution also opposes the change of venue on the same basic argument the government advances in every case where a change of venue is sought based on “presumed prejudice” from unfair pretrial publicity: that the Supreme Court has only reversed convictions in three cases in history based on such “presumed prejudice” and a “partial jury,” all of which were 1966 and earlier.
Indeed, as discussed below, the DC Circuit appears to have never applied such a presumption. And the Supreme Court has done so in only three, “extreme” cases: Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965); and Sheppard v. Maxwell, 384 U.S. 333 (1966).
The government argues in its opposition that a change of venue based on “presumed prejudice” is only appropriate in “extreme situations” and circumstances of similar description, and the DC Circuit Court of Appeals has never found such circumstances to exist in the past. They write:
The DC Circuit has similarly refused to presume prejudice in numerous other cases involving both national crimes such as Watergate and notorious local criminals such as Rayful Edmund. See, e.g., United States v. Childress, 58 F.3d 693, 706 (DC Cir. 1995) (declining to presume prejudice, which ‘is reserved for only the most egregious cases’); Edmond, 52 F.3d at 1099 (‘Neither the nature nor the impact of the publicity in this case presented the ‘extreme circumstances’ necessary to establish a presumption that a fair trial was impossible in this jurisdiction.’); United States v. Ehrlichman, 546 F.2d 910, 916 n.8 (DC 1976) (‘An examination of the voir dire process and its results in this case makes clear that the extreme circumstances condemned by the Supreme Court in … Sheppard … and Rideau … are not present here.’); United States v. Chapin, 515 F.2d 1274, 1287 (DC Cir. 1975) (rejecting ‘the argument is that no voir dire would have been effective in rooting out the prejudices of which [the defendant] complains’). This case is nothing like the few ‘extreme case[s]’ in which the Supreme Court has presumed prejudice based upon adverse pretrial publicity.
But if the circumstances of the January 6th protests do not meet the “extreme” or “egregious” standard, then the standard is without substantive meaning.
A government that respects the fair trial rights of those who oppose its policies, but feels nonetheless that boundaries of lawful protesting were exceeded, should have no interest in the location of the trial. The evidence will be the same in every locale, and the judicial officers presiding in any other federal courthouse are obligated to provide every defendant with the same substantive and procedural protections of their “fair trial” rights under the Fifth and Sixth Amendments. So why are these cases, under circumstances that are unique in our 245-year history, not the “extreme situations” which courts have spoken of over the past 60 years that warrant a change of venue?
THE 6TH AMENDMENT GUARANTEES AN “IMPARTIAL JURY” TO THE DEFENDANT—NOT THE GOVERNMENT
In stark terms that strip away the legal niceties of “prosecution” and “defendant” and “juror,” I characterize the reality of what the Biden Administration is doing here in the following fashion: The Biden Administration of the Democrat Party has undertaken to wield the prosecutorial power of the federal government to charge and put on trial supporters of Biden’s 2020 opponent and the political party that opposes the Biden Administration. The criminal charges arise from a political protest over the outcome of the election, which the Democrat Party claims—in self-reinforcing fashion—was intended to keep it from taking the power which it now wields.
The Democrat Party intends to conduct trials in the “federal city” far removed from the home states of the political opponents it has charged, and to have verdicts on those charges rendered by collections of residents of the “federal city” whose political interests run almost completely contrary to those now accused of crimes relating to the protest, and consistent with the party in power-wielding the prosecutorial authority.
Trials with such outcomes will only further deepen the divide it already faces in trying to rule the country.
Note that the Sixth Amendment guarantees an “impartial jury” only to the defendant, not to the government. At the beginning of a trial, the jury is not supposed to be impartial towards the government—it is supposed to be partial towards the defendant. That is called “the presumption of innocence.” Criminal trials begin with a presumption against the charges making up the government’s case. The burden of proof and persuasion is on the government, and the jury is supposed to be biased against the government’s case until persuaded otherwise by the evidence admitted under the Rules of Evidence.
If the Biden Justice Department doesn’t believe it can win trials in these cases with jurors composed of individuals from anywhere other than the District of Columbia, what does it imply about the persuasiveness of the evidence they’ve accumulated?
Those politically opposed to the Biden Administration will never accept as legitimate any trial convictions of January 6th defendants by juries drawn from the District of Columbia. The politics of the residents of the District are no mystery to the country as a whole. The Biden Justice Department is dragging citizens away from the communities where they live to be judged in a distant “federal city” inhabited by persons with whom they share almost no common political views. The verdicts might be justified based on the evidence presented, yet by insisting on holding the trials in a biased environment, the Biden Administration will gain nothing but further distrust and opprobrium from the political opposition. Trials with such outcomes will only further deepen the divide it already faces in trying to rule the country. What will it have proven? Only that it could gain convictions with DC jurors asked to pass judgment on individuals who oppose the regime in power—the same regime that was supported by 92% of those who voted in DC in the last election. Republicans and Trump supporters will not see them as “convictions” for crimes committed by Trump supporters, but rather “convictions” for supporting Trump.
But, if citizens of West Virginia were to convict January 6th defendants, and do so on the strength of the same evidence the Biden Justice Department would present in the District of Columbia, on what basis would the GOP and Trump supporters complain? How much more validation could the Biden Justice Department hope to gain for the tactics it has chosen to pursue than to have “Trump Country” voters condemn by their verdict the actions of January 6th protesters who chose to be tried by a jury of their peers.
More importantly, if the citizens of West Virginia were to acquit January 6th defendants after a fair presentation of the government’s evidence, how is justice not served? The Department of Justice has no stake in the outcome of a trial other than obtaining a verdict that is fairly rendered after the prosecution presented its case. If the jury returns a “not guilty” verdict, it is not the role of the Department of Justice to disagree. If it did, the law would allow it to appeal its losses in criminal cases. If the only goal of the system was to get a “correct” verdict, then the government would be allowed to appeal “not guilty” verdicts in order to convince the appellate court that an error was made.
But there are no “losses” for the government in criminal cases. Allegations are made, evidence is presented, the question of “guilt” or “innocence” is posed to the jury, and the jury decides. What the jury decides is of no significance to the government. The prosecution performed its role, and the jury performed its role. The gavel is pounded, and court is adjourned.
If the Biden Justice Department cannot see its way to allow January 6th defendants to have their trial away from DC, it will be acknowledging to the political opposition (as well as the watching world) that what it really seeks are show trials with predetermined outcomes expected from reliable jurors.