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Editor’s note: This post has been adapted from one written last August about the many change of venue motions filed in the criminal cases stemming from the Jan. 6, 2021, attack on the Capitol. (“Escape From D.C.: Analyzing Jan. 6 Venue Transfer Motions.”)
Yesterday, former President Donald Trump vowed on social media that he would “immediately” seek a “venue change ... out [of] D.C.” of his recent four-count federal indictment in Washington, D.C., for conspiring to overturn the 2020 election.
Three days earlier, Trump had also raised the city’s political demographics as an issue, describing the jury pool in Washington, D.C., as “over 95% anti-Trump” and stating that West Virginia would be a more “unbiased” venue. (In 2016 and 2020, Democratic presidential candidates received 91 percent and 92 percent of the District’s votes, respectively.)
If Trump files such a motion, he will almost certainly lose it—initially, at least. Under a U.S. Court of Appeals for the District of Columbia precedent set during the prosecutions stemming from the Nixon-era Watergate break-in, district judges defer such motions until after jury selection, at which time they will have a better sense of whether the ordinary tools for sifting out biased and emotional jurors during jury selection sufficed to guarantee the defendant a fair trial.
If past is prelude, at the close of jury selection Trump will then lose his change of venue motion for a second time, when the judge will conclude that the weeks-long voir dire process—including written juror surveys; individualized questioning of each juror by the judge; juror removals (“strikes”) for cause by the judge upon attorneys’ motions; and a set number of arbitrary (“peremptory”) strikes that the defense lawyers and prosecutors are each accorded—were, in fact, sufficient to ensure a fair trial. (In February, I took an in-depth look at the Washington, D.C., jurors ultimately selected to hear the highly publicized Proud Boys seditious conspiracy case, and why they appeared to meet the Supreme Court’s standards for fairness, in “The Proud Boys Jurors: Who Are They and Can They Be Fair.”)
U.S. District Judge Tanya S. Chutkan will not be writing on a blank slate. Dozens of such motions have been filed by the more than 1,000 individuals who were charged with federal crimes for their conduct in the city on Jan. 6, 2021, after Trump summoned them there and urged them to march to the Capitol to “fight like hell” lest they not “have a country anymore.” Many of those motions raised the political demographics issue Trump has vowed to raise—often supplemented by at least one of three different commissioned surveys purporting to compare the fairness of jury pools of the District of Columbia to those of other districts. Several motions raised far weightier claims of potential bias than the one Trump highlighted in his social media posts yesterday: his alleged support for an obscure legislative proposal that, personally, I hadn’t heard of before, though I live in the District and likely follow the media more attentively than many members of the district’s jury pool.
Leaders of the Oath Keepers paramilitary organization and the Proud Boys gang all filed or joined such motions, for instance. Oath Keepers founder Elmer Stewart Rhodes III and former Proud Boys chairman Enrique Tarrio were each identified by name at least 20 times at the sensational hearings of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, which were completed just two and five months, respectively, before their trials began. They or their groups were described at those hearings as “dangerous extremists,” “white supremacists,” “white nationalists,” or “racists”—yet their motions for change of venue were ultimately denied.
Transfers of venue, as such motions are called, are notoriously difficult to obtain. The Supreme Court has held that they are warranted only in “extraordinary” circumstances. Denials of such motions have been upheld, for instance, in such emotional and pervasively publicized prosecutions as those of the Boston Marathon bomber in Boston, former Enron CEO Jeffrey Skilling in Houston, and World Trade Center bomber Ramzi Yousef in Manhattan.
So far, the judges of the U.S. District Court for the District of Columbia have had no trouble batting away motions to transfer venue brought by Jan. 6 defendants. As of last August, at least 11 judges had denied such motions in 15 rulings handed down in 14 criminal cases stemming from the Capitol insurrection. (See here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.)
In every bid to transfer venue that Capitol riot defendants have raised, the key precedent the government has cited in response has been the same: Haldeman v. United States. This is the 1976 en banc ruling of the U.S. Court of Appeals for the District of Columbia upholding the convictions of three top Nixon administration White House officials for obstructing investigations into the 1972 Watergate break-in: former Attorney General John Mitchell, former Assistant to the President H.R. Haldeman, and former White House Assistant for Domestic Affairs John D. Ehrlichman. Unlike the First Circuit ruling in Delaney, Haldeman is binding on the judges hearing criminal cases stemming from Jan. 6, who all sit on the U.S. District Court for the District of Columbia.
In Haldeman, the defendants had sought transfers of venue to “any place other than the District of Columbia,” citing Delaney among other precedents. They alleged that the already extraordinary levels of pretrial publicity relating to their cases, trial of which began in October 1974, had been fanned and exacerbated by sensational public hearings held in May 1973 by the Senate Select Committee on Presidential Campaign Activities, known as the Ervin Committee.
U.S. District Judge John Sirica denied the motion, and the Haldeman court affirmed—by a 5-1 vote. In a per curiam, or unsigned, opinion, the majority distinguished Delaney in part because the Ervin Committee’s public hearings had finished “well over a year before [the defendants] were tried.” At the same time, the court acknowledged that impeachment proceedings against President Nixon had commenced “within a few months of the trial.” Those proceedings started in February 1974 and continued until Nixon resigned Aug. 9—just two months before the defendants’ trial began. But the court determined that these proceedings would not sufficiently bias jurors to warrant a change of venue.
In this article, I will look more closely at Haldeman, among other relevant precedential cases, and specifically at motions seeking venue changes based on the Washington jury pool’s alleged political hostility to defendants.
Constitutional Framework and Relevant Precedent
The Constitution strongly suggests that, generally, criminal trials should be held in the district where the crime occurred. Article III, Section 2, Clause 3, provides, for instance: “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; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” The Sixth Amendment, in addition, guarantees that “in all criminal prosecutions, the accused shall enjoy the right to ... trial by an impartial jury of the state and district wherein the crime shall have been committed.”
While the Constitution clearly contemplates that most trials must take place where the crime took place, the Supreme Court has recognized that “extraordinary local prejudice” may require moving a trial in order to vindicate the Sixth Amendment’s guarantee of an “impartial jury.” In one classic case, Rideau v. Louisiana (1963), this standard was deemed met where a murder defendant’s filmed, jailhouse confession was broadcast on local television three times before trial, reaching audiences of roughly 97,000 in a small Louisiana parish of 150,000 people. Three seated jurors acknowledged having seen the confession—while two others, incidentally, were deputy sheriffs of the parish in question. Obviously, we have seen no prejudicial pretrial publicity in the Jan. 6 cases remotely approaching the television broadcast of a defendant’s confession.
The facts in one of the few federal cases in which a district judge granted a motion to change venue were also truly extraordinary. The April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, left 168 dead, including 19 infants and children—most of them foreseeably killed in the building’s own day care center. The blast also caused damage to surrounding buildings, including the federal courthouse.
Federal prosecutors—overseen by then-Principal Associate Deputy Attorney General Merrick Garland—agreed with defendants Timothy McVeigh and Terry Lynn Nichols, who were facing capital charges, that these circumstances rendered it impossible to try their cases fairly in the Western District of Oklahoma. But while the defendants asked to move the trial out of state, prosecutors sought to hold it in Tulsa, in the Northern District of Oklahoma. Prosecutors urged that Tulsa would be more convenient for the more than 2,200 identified victims of the blast, many of whom were expressing an urgent desire to attend.
Nevertheless, Chief Judge Richard Matsch, sitting by designation from the District of Colorado, transferred the case out of state to his own home district. He found that while national press coverage had abated over time, coverage of the event throughout Oklahoma remained intense and emotional:
The Oklahoma coverage was more personal, providing individual stories of grief and recovery. As late as December 1995, television stations in Oklahoma City and Tulsa were broadcasting special series of individual interviews with family members and people involved in covering the explosion and its aftermath. ...
The tragic sense is heightened by the deaths of infants and very young children in the day care center. The horror of that fact has been powerfully portrayed by the symbols of teddy bears and angels displayed everywhere in Oklahoma. They were placed on a Christmas Tree at the State Capitol.
While the Jan. 6 insurrection was historic, its impact has been, at least in the view of Washington judges so far, mainly felt nationally. 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.
Perhaps the weightiest issue raised by certain Jan. 6 defendants in their change of venue motions was whether the House select committee’s highly publicized hearings prejudiced their trials, which were going on during or immediately after those hearings. Those hearings are already more than a year behind us, however, so any prejudice from them has likely been abated. In addition, since they were televised nationally, it’s not obvious that any prejudice Trump suffered from them would be cured by a change in venue. Still, it is possible that Trump, like other Jan. 6 defendants, will allege prejudice from them.
If so, he will rely on the case of Collector of Internal Revenue Denis Delaney, who was indicted in September 1951 for receiving payments to influence his official judgments, among other crimes. A month later, Delaney was contacted by a subcommittee of the House Ways and Means Committee that had been formed earlier that year to investigate nationwide corruption at the Internal Revenue Service.
Not only did Delaney’s counsel ask the subcommittee—known as the King Committee—to either postpone its hearings or close them to the public, but so did the Department of Justice. Nevertheless, the King Committee plunged forward with public hearings that very month.
Protesting a “veritable avalanche” of highly prejudicial publicity, Delaney asked for a postponement of his trial. The trial judge granted a one-month continuance, from December 1951 to January 1952 but, over Delaney’s objection, refused to delay it further.
Somewhat oddly, when the trial judge asked Delaney if he wanted a transfer of venue, his counsel declined, according to the appellate panel’s later ruling. “The announced reason … was that, in view of the country-wide publicity which had resulted from the legislative investigation, there was no assurance that the defendant could obtain a trial free of public prejudice by a transfer of the case to another district.”
In overturning Delaney’s conviction, the First Circuit found that the fact that it was the committee—not the prosecutors—that had caused the prejudicial publicity was irrelevant from the perspective of protecting the defendant’s right to an impartial jury. “[W]e perceive no difference between prejudicial publicity instigated by the United States through its executive arm and prejudicial publicity instigated by the United States through its legislative arm,” wrote Chief Judge Calvert Magruder for the unanimous panel.
The Delaney court’s approach appears to conflict with that of the en banc D.C. Circuit in Haldeman. One starting point for the Haldeman court’s analysis was the Supreme Court’s holding in a 1961 venue transfer case—that is, one decided subsequent to Delaney:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
After reviewing the 2,000-page transcript of the jury selection process, the D.C. Circuit agreed with the trial court’s determination that no transfer was required:
Most of the venire simply did not pay an inordinate amount of attention to Watergate. This may come as a surprise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less fascinating to the public generally.
Although Delaney and Haldeman are theoretically distinguishable from each other, the Haldeman court appears to have largely rejected Delaney’s approach and reasoning. The D.C. Circuit suggested that transfers of venue would virtually never be required unless voir dire itself—that is, the jury selection process—turned up such a pervasive level of bias in the jury pool that it became obvious that an impartial jury simply could never be winnowed from it.
In addition, while the Delaney court grounded its reversal on the judiciary’s supervisory powers over federal prosecutions—which provide protections that extend beyond bare constitutional requirements—the Haldeman judges squarely rejected that approach:
We believe ... that it is inappropriate to attempt to formulate a supervisory power standard for concluding that a fair jury cannot be selected. ... Invocation of an appellate court's supervisory power to require a continuance or a change of venue, although failure to do so did not constitute a denial of due process, would ... introduce ... unguided discretionary line-drawing and consequent uncertainty into the process of litigating controversial cases. ... And if an impartial jury actually cannot be selected, that fact should become evident at the voir dire. The defendant will then be entitled to any actions necessary to assure that he receives a fair trial.
Since the level of pretrial publicity in the Watergate cases was exceptional—dissenting Circuit Judge George MacKinnon called it “unequivocally unique in American history”—the Haldeman ruling sets a nearly insuperable bar for motions to transfer venue, at least prior to voir dire. (Nor am I aware of any instance in which a venue transfer motion was granted after voir dire was initiated.)
The defendants in Haldeman had—as have many of the Jan. 6 defendants—commissioned a survey purporting to show bias in the Washington jury pool that was worse than in alternative venues. That survey had concluded that, for instance:
93% of the Washington, D.C. population was found to know of the indictments. 73% of those people were found to have an opinion of guilt or innocence—a proportion 15% more than the corresponding national average and 23% more than in one other sampled area, closeby Richmond, Virginia.
The majority gave the survey witheringly short shrift, however:
[T]he trial court did not err in relying less heavily on a poll taken in private by private pollsters and paid for by one side than on a recorded, comprehensive voir dire examination conducted by the judge in the presence of all parties and their counsel pursuant to procedures, practices and principles developed by the common law since the reign of Henry II.
In the Jan. 6 cases, at least three surveys have been commissioned by defendants or their defense lawyers. See here, here, and here. Judge Amy Berman Jackson gave these a close reading in her 37-page ruling in the case of a peripheral, alleged Proud Boy defendant, Gilbert Garcia, but found them wanting. She judged the surveys to be marred by “flawed questions” that put “words in jurors mouths” and confronted them with “artificial binary choices.” In addition, unlike the survey that impressed dissenting Judge MacKinnon, she found that the Jan. 6 surveys tended to show that a higher percentage of D.C. potential jurors were open minded about defendants’ guilt than were potential jurors in the alternative jurisdictions canvassed:
Yes, 63% of District respondents said “likely guilty,” but 61% of Atlanta respondents said the same, and importantly, 33% of District residents said “depends” or “don’t know/refused,” while 30% of Atlanta residents gave that response.
The dissenting opinion of MacKinnon in Haldeman is worth noting because it demonstrates just how high a bar the majority opinion set for granting a change of venue. MacKinnon wrote that the media coverage of the Watergate break-in defied comparison save to “outbreaks of war,” and he stressed that “the Washington Post stood at the center” of the maelstrom. “[N]ewspaper coverage alone in Washington, D.C.,” he stressed, “stayed at an average level of 30 to 120 column inches a day, accumulating to a total of some 50,000 column inches for the entire 22 month period between disclosure of the break-in and the May 1, 1974 change of venue motion.”
Like the Delaney judges, MacKinnon felt that congressional committees had to be held responsible for foreseeably imperiling the fairness of defendants’ trials. “A factor that compelled use of the simple venue safeguard in this case,” he wrote, “was that the United States Senate had expressly chosen to televise its hearings in spite of the Watergate Special Prosecutor’s request, out of concern for defendants’ fair trial rights, that there be no television coverage.”
As if that weren’t enough, MacKinnon noted, eight of the 12 seated jurors at the defendants’ trial had admitted watching the hearings. Furthermore, several of the perjury counts the defendants were charged with stemmed from those very hearings. “There was therefore the obvious possibility that these jurors in the case were actual witnesses to the charged crime,” wrote MacKinnon, “a frequent cause for disqualification as a juror.”
Finally, MacKinnon raised on his own an additional issue that has been thrust front-and-center in many of the Jan. 6 cases: potential political bias of the overwhelmingly Democratic Washington, D.C., jury pool. It is perhaps a sign of dramatically changed times that none of the Haldeman defendants, though top White House officials in a Republican administration, had raised this as an issue.
But MacKinnon considered potential political bias a legitimate basis for transferring venue—or at least an aggravating circumstance that might warrant one.
The public record is that Washington, D.C. is unique in its overwhelming concentration of supporters of the Democratic Party, as opposed to the Republican Party to which the defendants here belonged. ... [T]he candidate of the Democratic Party for President in 1968 received 81.8% of the total vote cast in the District of Columbia and in 1972 received 78.1% of that vote.
As a not-so-parenthetical aside, those lopsided figures have only grown more so in the intervening years. In 2016 and 2020, as many Capitol riot defendants have pointed out, the Democratic presidential candidates received 91 percent and 92 percent of the District of Columbia’s votes, respectively.
[I]n Washington, D.C., there most emphatically does appear to be a unique island of political bias, and in this case, with its massive political aspects, it would be futile to ignore the possibility that prior to the trial potential jurors may have formed prejudgments of the case based on their political affiliation or leanings. The obvious possibility of an extraordinarily high concentration of bias against the Republican Party defendants, in light of the simple and virtually costless venue remedy available to the trial court, buttressed the facts which required changed venue.
The majority in Haldeman brushed off MacKinnon’s argument with seeming distaste—as if reluctant even to dignify it with reasoned engagement. The panel described the contention as “odd,” stressed that MacKinnon raised it himself, and that he cited no precedent in support. “Not without reason,” the majority wrote, “the relevance of this information seems to have escaped the prosecution, the defendants, their counsel, and the trial court.”
Forty-six years later, however, many Jan. 6 defendants have squarely raised the political bias issue in their motions to transfer venue. They have done so, indeed, with varying degrees of tact. A motion filed by Oath Keepers associate Thomas Caldwell in July 2021—and soon joined by 13 other Oath Keepers defendants—appeared consciously calculated to give offense. In seeking a transfer to the Harrisonburg division of the Western District of Virginia—Caldwell’s home district—his attorney, David Fischer, alleged that the “overwhelming majority of District residents despised Caldwell and his co-defendants even before January 6th.” Then he explained what he meant:
The Court can take judicial notice that, with few exceptions, potential District jurors loathe Donald Trump and, by extension, his supporters. The antipathy towards Trump and his supporters in the District is obvious. ...
District residents not only despise Caldwell’s politics—they despise many things that traditional America stands for. District residents, who largely style themselves as chic, sophisticated, worldly, high-brow urbanites, are repulsed by rural America’s traditional values, patriotism, religion, gun ownership, and perceived lack of education. ... To deny that the lion’s share of potential District jurors will be highly predisposed against a Trump-supporting defendant is like denying that water is a liquid.
Some months later, an attorney for Proud Boys defendant Joe Biggs marshaled a different set of stereotypes in a more adroit effort to escape Washington. Defense counsel John Daniel Hull argued that “lovably dorky, wonky, media-attentive Washingtonians” were more likely to be influenced by the House select committee’s “spectacle,” likening the latter body to “P.T. Barnum”:
The hearings so far are slick, choreographed with the assistance of a former president of ABC News, far beneath the dignity of the United States Congress and, in Bigg’s [sic] case, comprised of misrepresentations, outright lies and high tabloid noise of the first order. A show. A production. A spectacle.
The good, well-meaning, informed, media-attentive citizenry of the District of Columbia from which jurors are drawn will believe that spectacle as packaged. They trust Congress. They rely on our mainstream media. Earnestly, and in good faith, potential jurors will take strong cues from the messaging of both.
So far, district judges have rebuffed all stereotypes—pejorative or quasi-positive. As Judge Amy Berman Jackson wrote in the case of alleged Proud Boy Gilbert Garcia:
[T]he notion that D.C. residents would be particularly influenced by the statements of national political figures is based on an uninformed stereotype about the people who live here. The city includes, of course, local and federal government employees—the overwhelming majority of which are not political appointees—but also teachers, health care workers, shopkeepers, cab drivers, waiters, college students, and thousands of others whose day-to-day activities have nothing to do with politics. There is no reason to assume that they are more prone to be influenced by politicians’ pronouncements, let alone that any influence would render them incapable of being fair to this individual defendant.
In sum, a Trump motion to transfer venue out of Washington, D.C., is a long shot. If he is convicted and this becomes an appellate issue, prosecutors have little to fear so long as the case rises no higher than the D.C. Circuit. And even if it does rise higher, the Supreme Court precedents set extremely high bars for reversals based on failures to transfer venue.
Still, the high court has not specifically dealt with venue transfer motions in the context of a jury pool’s alleged political bias. While the Haldeman majority appeared to dismiss the political bias claim out of hand at the time of Watergate, it’s hard to predict how the current Supreme Court would respond to it today, nearly a half century later. Given the Court’s recent willingness to venture in bold new directions with modest fealty to existing precedent, I do not presume to predict how that Court would resolve such a motion today.