I think that everybody in the country knows what we are seeing in the impeachment trial of Donald Trump: Jury nullification.
Everybody – on both sides – knows that he’s guilty. He withheld military aid to Ukraine for his own partisan benefit. The White House lawyers know it. The Republican Senators know it. Everybody in the country knows it.
But the Senate Republicans are not going to vote to convict him: Senate nullification.
Think of the southern juries of years past who would never convict a white man of murdering a black man. The problem was not the law, or the prosecution. The problem was the jury.
That’s what we’re seeing now.
The problem is the jury.
53 Republican Senators.
Now, there is a proper place for jury nullification. The Peter Zenger case, where a New York jury refused to convict a journalist of libeling the colonial Governor, helped establish the tradition of free speech – though it did not change the law. Northern juries before the Civil War refused to convict people for violations of the Fugitive Slave Act – thereby striking a blow against slavery, though again, it did not change the law.
I read somewhere an argument by someone who described how juries in London, in the 1700s or so, would refuse to convict a poor person of theft for stealing the food they needed to live on. The penalty for theft was death by hanging. And I can understand, on one level, the principle that the writer was arguing, that jury nullification was the wrong way to go about it. The proper approach is to change the law. On the other hand, if I were on a jury, presented with a case of an eight-year-old child who had stolen a loaf of bread, there is no way that I would have voted to have the child hung. The law be damned.
But what is happening in the Senate is not a righteous reaction against an unjust law, in this case the laws against bribery and ignoring subpoenas. There is no question in anyone’s mind that the Republicans would vote to convict a Democratic president who misused his powers for his own personal, political benefit. (There is little doubt that most Democrats WOULD convict a Democrat who did what Trump did.)
As I said, think of your attitude toward the juries of years past – and not only in years past and not only in the south – who would never convict a white man of murdering a black man. The problem is not the law, or the prosecution. The problem is the jury.
That’s what we’re seeing now.
The problem is the jury. 53 Republican Senators, ready to impose Senate nullification. After it happens, our only recourse is to hold them accountable. Hold them up to the light, and put enough effort, energy, and organization into protecting our elections that we can vote every one of them out.
Then we can start to build a nation again.
Wednesday, Jan 22, 2020 · 2:16:53 PM +00:00 · BC in Illinois
Wow. The Rec List. Thank you.
I have just one note to add: Chief Justice John Roberts last night referred to the Senate as “the world’s greatest deliberative body.”
It was the only time in a day of watching the trial that I laughed out loud.
(No, there is a second note. Yesterday, I was seriously proud to be a Democrat. The party of Schiff, Crow, Demings, Jeffries, Nadler and their team.)
[Edited to add Jeffries.]