Facing the prospect of four jury trials in four very different venues as the Republican frontrunner in the 2024 presidential election, Donald Trump is the most recognized criminal defendant in the history of this nation. Imagine a prospective juror in any one of the pending cases saying they are not really familiar with and do not know anything about Mr. Trump. In most “regular” cases, deeply embedded knowledge about the defendant is grounds for dismissal from jury service. With Donald Trump as the defendant, familiarity with the former president is a given. But the test for whether a juror can be fair and impartial goes far beyond mere awareness of the defendant. And in the Trump cases, voting for or against him in prior elections wouldn’t be grounds for exclusion.

As with all cases, the judges in the Trump cases wield exceptional power over the entire trial process, and this certainly includes the selection of jurors. Judge Tanya Chutkan for example, will set the rules for picking jurors differently than would Judge Aileen Cannon. Each jurisdiction has rules and precedent for the way jurors are screened for jury duty, but within these parameters, judges have tremendous leeway to deviate from norms. And these are not a normal set of cases.

Where the judges’ rulings will have the most pronounced impact on the jury selection process will be when each side wants to use a “for cause” challenge on a prospective panelist. Both the government and the defense have an unlimited number of cause challenges they can make to try and eliminate certain jurors for what they perceive as insurmountable bias. A clear case of partiality, for example, is if someone says they have followed the news about the indictments and believe Trump is guilty before hearing any of the evidence in the case and nothing can change their view. The prosecution wouldn’t even argue that this juror can ultimately put aside their pre-conceived notions of the case and be fair. On the other end of the spectrum, a “for cause” challenge will be granted if a potential juror says Trump has continually been persecuted (not prosecuted) since the moment he stepped into office in 2017 and the deep state is once again trying to keep him from running in 2024 and nothing could ever convince them of Trump’s guilt. The hard questions will be within these extreme examples, and it is ultimately up to the judge to grant a motion to dismiss a juror for appearing too biased for serving in a fair and impartial manner. This shapes who will end up serving on the juries. 

Some cause motions will be granted and those jurors will be dismissed for cause, but sometimes the judge will try and rehabilitate jurors who may appear biased at first. For example, someone might say they think Trump could very likely be guilty of trying to pressure others to overturn the results of the election, but when asked by a judge whether they could set that aside and be fair and impartial, that potential juror says yes, they could. Judges have tremendous discretion to grant a cause motion to dismiss a juror. This happens all the time in jury selections. But keep in mind that unless a juror wants off, most jurors will tell a judge that they can set aside any pre-conceived notions and accept the judge’s instructions of the law to be fair and impartial. But judges have to make inferences and determinations about whether a potential juror can actually do that.

The four judges in the four trials could come to differing conclusions about one’s fitness to serve. Part of the judgement is the juror’s non-verbal communication, including tone, posture and facial expressions. If a judge does not allow someone to be stricken for cause, one of the parties could ultimately use a peremptory strike on that particular juror if they really do not want them to serve. But the number of peremptory strikes is limited, so getting someone bumped for cause in essence saves a litigant from having to use a precious peremptory strike on a juror they do not like. It has been said that judges are like jurors but with a law degree and a robe. Their judgments of who can be fair and impartial will go a long way towards determining who will end up serving on what would be the trials of everyone’s lifetime.