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One of Donald Trump’s lawyers, John Lauro, said he wants to transfer the 2020 election case out of Washington. Trump echoed the sentiment on his social media site, expressing hope that his prosecution will be “moved to an impartial Venue, such as the politically unbiased nearby State of West Virginia! IMPOSSIBLE to get a fair trial in Washington, D.C.”
But Washington judges have consistently rejected venue transfer motions in Jan. 6 cases. As then-Chief Judge Beryl Howell put it earlier this year when ruling against a rioter, there’s a “brick wall” of such decisions against these defendants trying to avoid being prosecuted in Washington.
Let’s look at the factors that judges analyze and how Trump’s situation compares.
At the outset, the federal appeals court covering Washington has said it’s “well established procedure” to deny venue transfer motions before jury selection starts. So however such a motion from Trump turns out if he makes one, it may be premature.
But juror prejudice is presumed in “extraordinary” cases.
What do such cases entail?
Supreme Court precedent lays out three factors:
- “the size and characteristics of the community in which the crime occurred”;
- the presence of “blatantly prejudicial information” in news stories available to jurors; and
- the time elapsed between the alleged crime and trial.
When it comes to the first factor — the community — Washington’s relatively large size hurts defense transfer motions. In March, another judge noted: “Every other court to consider this question in connection with a January 6 prosecution ... has found that D.C.’s size does not weigh in favor of a presumption of prejudice.”
And comparing Jan. 6 prosecutions to another historic prosecution in a large locality, the Boston Marathon bombing case, where venue transfer was rejected, hasn’t helped Jan. 6 defendants. Judge Howell noted in her ruling that the Boston case had “far more visceral local effects.” And further cutting against Trump’s claim that it’s impossible to get a fair trial in the nation’s capital is circuit precedent — from Watergate — that Howell recalled “has already rejected the argument that D.C. residents are incapable of fairness in highly politically-charged criminal prosecutions.”
The second factor — pretrial publicity — could favor Trump more than lower-level Jan. 6 defendants, but that doesn’t mean he would prevail in that respect, either. In rejecting the rioter’s motion, Howell wrote that she would “be surprised if anyone in the jury pool has heard of this defendant.” Obviously, that’s not so with Trump — but it wouldn’t be the case for him anywhere in the country.
On the subject of nationwide vs. local impact, the former president’s situation is further distinguished from a foundational 1963 Supreme Court case in which the venue should have changed. That was a Louisiana prosecution of a man whom police filmed confessing without his knowledge and aired it on local television shortly before trial. Of course, what happened on Jan. 6 was entirely different — including that it was televised far beyond Washington.
The third factor wouldn’t seem to help Trump, either — the time between the alleged crime and the trial. For all the complaints from Trump and other Republicans about why the case is being brought now, 2.5 years later, the passage of time cuts against a transfer motion.
On that point as well, Howell cited the Boston bombing case, where two years was deemed sufficient. “So too here,” she wrote, “any jurors who carry the memory of January 6 particularly heavily such that he or she cannot be fair to the defendant can be ferreted out in voir dire,” referring to jury selection.
You may be wondering by now: Has a case ever been transferred?
Yes. Take the prosecution of Timothy McVeigh in the Oklahoma City bombing. He was charged in Oklahoma but prosecuted in Colorado.
Yet, like the Boston case, that Oklahoma case is distinguishable from Jan. 6, in that both of the earlier cases had a national impact but the primary effects were more local. Differentiating the Oklahoma case when rejecting another Jan. 6 transfer motion last year, Judge Amy Berman Jackson observed that the “personal impact was concentrated almost entirely in Oklahoma City, where the friends and family members of the victims resided.”
When it comes to Jan. 6, she wrote:
Here the situation is reversed: hundreds of individuals have been charged in a single incident with primarily nationwide implications, and there are a much smaller number of injured victims with ties to the community, none of whom the defendant is charged with assaulting.
Of course, the latest charges against Trump are broader than the “single incident” of Jan. 6, casting the country itself as the victim of Trump’s efforts to overturn the presidential election. That’s another factor that could count against him if he tries to move his case, in which the “nationwide implications” are even greater.