Biden’s Classified Documents Increase Pressure on DA Fani Willis; Possibility of Juror Nullification May Haunt Federal Prosecution
Pressure Increases On DA Fani Willis
WASHINGTON, D.C. (January 11, 2023) – The discovery that President Joe Biden, while vice president, may have knowingly or otherwise removed and retained classified documents substantially increases the burden on Fulton County, Georgia, DA Fani Willis to secure some punishment for former president Donald Trump.
Since it makes a federal Trump-document prosecution more problematic if not downright risky because of juror nullification, concludes public interest law professor John Banzhaf.
Although there are vast legally significant differences between any classified document criminal cases against Trump and against Biden, many laymen may well see them as similar enough to demand substantially the same treatment, thereby risking not only public outrage if Trump but not Biden is prosecuted.
But also the very real possibility of juror nullification, says Banzhaf, an expert in both jury- and juror nullification, and the lawyer who filed the formal complaint which led to Willis' criminal investigation of Trump.
This is especially true since many Republican figures are attempting to proclaim similarities if not equivalences between the two cases, with some even demanding that the two situations are so close that the FBI should raid Biden's residence, office, and other locations where more classified documents might be hidden.
At least based upon currently available information, there are vast differences between the two classified document cases, says Banzhaf. Aside from the very significant differences in the number (and apparently also the classification) of the documents, Biden seems to have cooperated whereas Trump appeared to have deliberately delayed and obstructed any return of the documents in question.
But Trump's defenders can argue that both men violated the law regarding classified documents, and kept the documents for a considerable period of time. Also, while Trump as president had the constitutional authority to declassify documents, and apparently claimed to have done so, it appears that Biden has made no such claim.
Although Biden, unlike Trump, does not seem to have deliberately tried to hide the classified documents, it appears that he did hide - or at least failed for some time to publicly disclose - that he had taken and retained them.
So the similarities in the two situations could easily lead a juror in a criminal trial against Trump concerning the classified documents to conclude that voting for a conviction would be unfair if no similar prosecution is also brought against Biden, and therefore refuse to join other jurors in voting "guilty."
The result of even only one out of twelve jurors unwilling to send Trump to prison would be a hung jury; a great embarrassment to the Justice Department, and one which would make it extremely difficult to try him again.
The Supreme Court has held that jurors have an absolute right to refuse to vote "guilty" - even if guilt is absolutely clear under the facts and applicable law - if they feel that a prosecution is unfair, that the defendant was wrongly singled out for prosecution, or if for any other reason justice would not be served by a conviction.
So even a juror who is not otherwise a Trump supporter could reach that conclusion and refuse to vote "guilty." Also, prosecuting Trump but not Biden for illegally taking and retaining classified documents could easily provide a justification for anyone with some sympathy for Trump but who might otherwise be reluctant to act on those feelings.
In short, Biden's apparent violation of the law would make prosecuting Trump over his classified documents even more problematic, argues Banzhaf.
A federal prosecution of Trump on the alternative ground of his actions related to the events of January 6th has always been problematic, says Banzhaf, since many other political figures have voiced similar calls for action, his words on that date are arguably somewhat ambiguous, and the Supreme Court has erected a very high bar in the Brandenburg case in order to protect political speech under the First Amendment.
So, if federal prosecutions on either basis - the classified documents as well as the January 6th events - are problematic, the pressure on DA Willis to indict and then prosecute Trump so that he will have to pay some price for his crimes is substantially increased, says Banzhaf.
The law professor notes that, even before this recent classified document revelation involving Biden, many experts have concluded that the case under Georgia's criminal law was the strongest of the three which might be brought against Trump, and that DA Willis was more likely to seek and obtain a criminal indictment than Attorney General Merrick Garland who has to approve any federal prosecutions.