Alan Dershowitz has been stepping in it ever since Trump became president, and by it I mean a pile of reputational guano. Lately he’s been onto an important point, but he couldn’t manage to make it without kicking up the kind of fuss that nearly always attends his artless jabber anymore.
In discussing Special Counsel Robert Mueller’s recently reported use of a DC grand jury in the Trump-Russia collusion case, Dershowitz said the following:
It gives the prosecutor a tremendous tactical advantage — the District of Columbia, which is always solidly Democratic and has an ethnic and racial composition that might be very unfavorable to the Trump Administration.
What Dershowitz is talking about here is that the move away from a grand jury that Mueller already appeared to be using in Virginia (in the Michael Flynn case, at least) to a new grand jury in DC signals Mueller’s intent to try the case — if there is a trial — in DC, not Virginia. Dershowitz is right about that: if Mueller is looking to issue indictments, he’s going to use a grand jury in the same district where he wants to litigate the case or cases, so if he’s using a DC grand jury with an eye toward indicting, then he has indeed decided to litigate in DC rather than Virginia.
That could be the result of nothing more than Mueller’s conclusion that the crimes at issue were committed in DC, especially if he’s going to go after Trump, Kushner, or anyone else who lied or obstructed while he, she, or they were in the White House.
But it wouldn’t be surprising at all were Mueller thinking about more than just that in picking his most favorable venue — lawyers call this “forum shopping.” The geographical locus of a jury pool is unquestionably relevant to the outcome of a case. In my own practice in Michigan, for example, I learned early on that lawyers were hesitant to try any civil tort case on the plaintiff’s side in the Upper Peninsula; for whatever reason, juries up there were notoriously stingy about awarding damages to the victim of negligence or even intentional wrongdoing, no matter how egregious the conduct of the defendant.
Where Dershowitz went astray was with his interjection of ethnicity into the equation. As an officer of the court (i.e. a licensed attorney), Dershowitz is obligated to choose his words with care, and to the extent that any reference to ethnic-minority status might be regarded as reinforcing stereotypes or bespeaking some propensity toward jaundiced decision-making, his words were ill-conceived at best. (And he now finds himself in an unseemly row with a congresswoman about this.)
And I doubt very much that Mueller is weighting ethnic heritage as a factor in his choice of venue. It’s far more likely that he’s looking at hard data about jury verdicts by case type. Does the political bent of a jury pool (whether it’s more liberal or more conservative) factor into that? Sure it does. I can certainly see Mueller thinking to himself, as he looks at Team Trump and its collective lifestyle, that it would only take one Northern-Virginia, country-club robber baron to hang a jury.
There’s nothing unfair about Mueller’s consciousness of such considerations, and in fairness to Dershowitz, I didn’t hear him say (as has been widely misreported) that Mueller was trying to “stack the deck” in any improper way.
About this much, Dershowitz could very well be right: Mueller switched grand juries because he is looking to prosecute somebody, and he wants to do it in DC because he thinks he has a better chance of getting a conviction there. And if Dershowitz is right about that (and Mueller is already thinking that way), then someone in Trump’s orbit — and maybe even Trump himself — is in a world of trouble.