One-way lawfare

Opinion editor’s note: Star Tribune Opinion publishes a mix of national and local commentaries online and in print each day. To contribute, click here.

•••

As former President Donald Trump and his associates face a barrage of questionable legal cases, many naive observers earnestly warn that Democrats will face reciprocal “lawfare” campaigns initiated by Republicans. There are, however, structural impediments baked into the federal and state legal systems that make potential Republican forays into lawfare unviable. When it comes to attenuated legal actions by zealous prosecutors in overwhelmingly partisan locales, what has been coming around for the GOP is unlikely to ever go around to Democrats.

The first structural barrier to GOP lawfare is the venue rules for federal courts. Without explicating the minutia under the Federal Rules of Criminal Procedure and the Sixth Amendment to the Constitution, the upshot is that most federal actions against high federal officials or political operatives will end up venued in the District of Columbia, which voted for Joe Biden over Donald Trump by a margin of 92 to 5 in 2020.

In D.C., Democratic defendants do not face juries of their peers so much as juries of their intimates, and a Democratic defendant has a constitutional right to be tried before a jury in the judicial district in which the alleged crime was committed. Republicans, by contrast, face juries of their adversaries in D.C. While it is often said that a grand jury will indict a ham sandwich, a D.C. trial jury will convict a ham sandwich, if it is Republican.

The Federal Rules of Criminal Procedure permit transfer from a judicial district if a defendant cannot get a fair trial there. Watergate figures H.R. Haldeman and Dwight Chapin tried to have their cases transferred due to the anti-GOP bias of the jury pool in D.C., but those attempts were firmly rejected by the federal Court of Appeals for the District of Columbia. Those cases remain the law applicable to D.C. federal trial courts.

The composition of the Justice Department also would hinder any Republican attempts at lawfare in the federal courts. Even in an administration with a Republican-appointed attorney general, the political composition of career DOJ lawyers is akin to that of the general populace in D.C., and the careerists are capable of slow-walking into the ground an investigation of a Democratic official or associate. Hence, the DOJ allowed crucial statutes of limitations relating to Hunter Biden to expire before concocting a blush-worthy sweetheart plea deal that was rejected by a federal judge.

State courts do not present substantially better options for any GOP lawfare gambits against Democrats. As an initial matter, there are essentially no state court venues with the Republican equivalent of the monolithically Democratic jury pools that exist in the D.C. (Biden, 92-5) or New York County (Biden, 86-12). Backwater counties composed of rural areas and small towns produce the largest GOP majorities, but the margins do not approach those in urban Democrat strongholds.

For example, Joe Biden still managed to get 27% of the vote in Columbiana County, Ohio, where East Palestine is located. Republicans are so few in D.C. or New York County (Manhattan) that a prosecutor likely can weed any out with preemptory challenges, but there is a sufficient critical mass of Democrats in places like East Palestine to assure some representation on a jury. It may take only one or two Democratic members to give voice in the jury room to the weakness of a Republican prosecutor’s case or, at least, cause a hung jury.

In any event, major political figures of either party typically do little business in the strongest GOP counties, so it would be very difficult to obtain against a national Democratic politician state court venue in a place like Columbiana County. GOP figures, by contrast, will find it difficult to avoid activities that might result in venues in overwhelmingly Democratic counties, like New York County or other major urban locales.

Finally, while some note that the arguable weakness of cases against GOP figures may leave any convictions susceptible to reversal on appeal, that does not discourage lawfare where such remedies will only be available after an election. Just ask the ghost of the late Alaska GOP Sen. Ted Stevens, who in 2008 was convicted by a D.C. jury on a corruption charge a week before an election, which he then lost, only to have the conviction later thrown out and the prosecutors disciplined for withholding exculpatory evidence.

In sum, with monolithically Democratic venues available for cases against Republicans and no equivalent for prosecution of cases against Democrats, and with remedies for abusive prosecutions largely not available until after an election, one can expect lawfare by Democrats against GOP figures to continue but Republicans to be frustrated in any attempts at reciprocation.

Jonathan F. Mack is a Minneapolis attorney who has frequently focused on jurisdictional issues.