No sooner did I write this morning’s post on a violation of Donald Trump’s rights under the Sixth Amendment than we had a second violation of another of Trump’s rights under the Sixth Amendment. Under Sheppard v. Maxwell (1966), the case popularly known for inspiring the TV show and film The Fugitive, the Supreme Court has long held that a defendant’s right to an impartial jury can be violated by extensive publicity about the case that creates a circus atmosphere. Now, courts have had to be practical about this: Lots of cases attract media attention, and criminal defendants can’t be allowed to benefit simply because they have committed a sensational crime. The January 6 case against Trump in D.C. offers a potential contrast. The fact that the January 6 riot and much of Trump’s behavior leading up to it occurred in D.C. doesn’t mean he can’t be tried there. By contrast, there is a more serious argument that it’s hard for Trump to get a fair trial in D.C. after he already faced both a Senate impeachment trial and months of House committee hearings in D.C. over January 6.
The counter-argument would be that these things are removed in time from the trial, which won’t take place earlier than this fall. But this morning, the Biden-Harris campaign sent a delegation headed by famous actor Robert De Niro to stand across the street from the courthouse and rail against how Trump “doesn’t belong in my city,” how “he directs the mob to do his dirty work for him,” how he “wants to destroy not only the city but the country, and eventually he could destroy the world.” De Niro also claimed: “Elections. Forget about it. That’s over. That’s done. If he gets in. I can tell you right now. He will never leave. He will never leave. You know that. He will never leave.” And De Niro didn’t just thunder against Trump, he explicitly said that the jury should convict: “The fact is whether he’s acquitted, whether it’s hung jury, he is guilty — and we all know it. I’ve never seen a guy get out of so many things, and we all know this. Everybody in the world knows this.”
This is a nationally known celebrity acting as a representative of the president of the United States, at the very site of the trial, on the day before the jury will begin to deliberate, declaring that “everybody in the world” knows that the defendant is guilty and that he has previously gotten out of too many things. Sure, Trump has had his surrogates out there (including the speaker of the House), but the prosecution doesn’t have a constitutional right to an impartial jury; the defendant does. If this isn’t over the line, what is?