Will Trump's Jan. 6 trial move to West Virginia? The long-shot strategy explained
Former President Donald Trump wants to move one of his pending trials from Washington, D.C., to West Virginia.
He and his legal team say that the jury pool in the state would be more balanced, offering Trump a fairer trial.
Experts say the request is a long shot, legally speaking. But even if it fails, it could be a win for Trump politically.
NPR traveled to West Virginia this week to explore why.
Wait, which trial are we talking about?
This trial is the one that stems from charges that Trump attempted to overturn the results of the 2020 presidential election.
On Aug. 1, federal prosecutors charged the former president with participating in a conspiracy that culminated in violence at the U.S. Capitol on Jan. 6, 2021.
Trump has pleaded not guilty and has denied all wrongdoing. And he hasn't been shy with his thoughts on being tried in the same city where the violence unfolded.
"No way I can get a fair trial, or even close to a fair trial, in Washington, D.C.," he wrote in one post. "There are many reasons for this, but just one is that I am calling for a federal takeover of this filthy and crime ridden embarrassment to our nation."
In an interview with NPR's All Things Considered, Trump's attorney John Lauro said the legal team would be "looking for a more diverse area that has a more balanced political jury pool."
"You know, the country is very, very divided politically right now — this is a very divisive indictment."
So why West Virginia?
In a phrase, it's all about the optics.
"West Virginia was a state that was more evenly divided," Lauro said, referring to the results of the last election. "And we're hoping for a jury that doesn't come with any implicit or explicit bias or prejudice."
Lauro has also pointed out that West Virginia's federal courthouses are reasonably close to the District of Columbia; however, there are federal courthouses in Maryland, Virginia and Pennsylvania that are about the same distance.
Of the states that surround the District of Columbia, West Virginia is the reddest: Voters there backed Trump over Joe Biden by 39 percentage points in 2020, the second-highest margin — behind Wyoming.
Ultimately, transfers of venue come down to the judge's discretion, and jury bias is often an unsuccessful argument.
Federal judges have repeatedly rejected jury bias arguments in other cases stemming from the attack on the U.S. Capitol. As of April 2022, more than a dozen defendants had tried to relocate their trials, and each one was unsuccessful, according to an analysis by CBS News.
Judges often note that a city like Washington, D.C., with a population of more than 670,000, is large enough to produce 12 impartial jurors through a rigorous "voir dire" process that includes questioning by both lawyers and the judge.
Trump's team could again seek a venue change after the voir dire process, arguing that the ordinary tools for weeding out bias were insufficient. But then the judge, Tanya Chutkan, would need to agree that Washington, D.C.'s jury pool was uniquely biased, meaning that an impartial jury could never be found in the District of Columbia.
What would it take for Trump's argument to stand up in court?
It could be a pretty tough road, according to experts like Roger Parloff, a D.C.-based journalist who covers legal issues.
"While the Jan. 6 insurrection was historic, its impact has been, at least in the view of Washington judges so far, mainly felt nationally," he wrote in a recent article for Lawfare. "True, there was a one-night curfew in Washington, there were some street closures, and security at the Capitol was beefed up for months. But it is hard to compare the distinctive impact it had on prospective jurors of Washington, D.C. — as opposed to those of any other jurisdiction in the country — with the unique impact the Murrah bombing had within the state of Oklahoma," a reference to the 1995 Oklahoma City bombing.
Even if Trump's lawyers try to argue the point on sheer public perception — on what D.C. thinks of Trump overall — a judge isn't likely to agree that West Virginia is more "politically balanced," according to John Kilwein, a political science professor at West Virginia University.
"That's just blatantly ridiculous," Kilwein told NPR. "You'd just be shifting a jury pool that's 90% Democrat to, say, 70% Trump-supporting."
If this is such a long shot, why is Trump still pushing for it?
Kilwein said there's another reason that Trump would want to put Washington, D.C., and West Virginia side by side.
"It's an excellent juxtaposition," he said. "It's designed to highlight what I think is accepted by a lot of his supporters: And that is it's a two-tiered justice system, and that he's being targeted in the liberal District of Columbia and that wouldn't happen in West Virginia."
NPR traveled to Martinsburg, W.Va., this week to ask residents about that messaging firsthand. The responses were more nuanced than Trump's social media comments might suggest, but it's clear his overall message is filtering through to some.
"I know he won't get a fair trial in D.C.," said Charlie Barnholt, who was getting his hair cut in town. "We know it's a red state, but at least he's not going to be hung out to dry like he would be in Washington, D.C."
"The justice system has become a bit politicized," said another person in town, Joshua Thomas. "Let's just say some candidates are being put on trial more than others are."
Barbara Bratina, who owns a local jewelry shop, said she disagreed with Trump's take.
"I believe Trump can get a fair trial in Washington, D.C. I believe people want to be honest wherever they are," she said.
Whether Trump's trial moves or not, pushing the D.C.-West Virginia question allows him to keep feeding his long-standing narrative that he's being treated unfairly.
And that message appears to be paying off: Trump has consistently seen a bump in campaign fundraising and Republican primary polling numbers each time he has been indicted on criminal charges.
When will we know whether the trial is moving?
The location question is just one of several logistical skirmishes playing out in the pretrial hearings so far, which include when the trial would begin.
Prosecutors have asked for a start date of Jan. 2, 2024, estimating the case could last about four to six weeks. Trump's team wants to delay the case further, perhaps until after the 2024 election.
The judge is likely to issue a ruling on that question soon, and she hasn't given any indication how she might lean.
Chutkan's first ruling in the case, which came on Friday, offered a partial win for both sides.
She agreed with Trump's lawyers that a protective order — which will govern how much the defense can publicly share about the case — should cover only material designated as sensitive, not all the information exchanged in discovery. But she also sided with the Justice Department in designating witness interviews and recordings as "sensitive."
The mixed ruling means, in part, that Trump will be limited in what he can say about the case moving forward.
"Disclosure of any of those [sensitive] materials creates too great a risk that witnesses may be intimidated" — or that the jury pool may become polluted, she said.
As part of that, she promised to pay close attention to Trump's messaging from here on out. So too will the residents of West Virginia.
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