Maryland’s highest court just issued a ruling that resonates with relevance to Donald Trump’s second impeachment and the former president’s current trial before the Senate. The ruling tempts me to declare that the 44 Republican senators who voted against putting Trump on trial — and who appear ready to acquit him despite overwhelming evidence that he incited January’s violent insurrection — are engaged in the biggest case of jury nullification in American history.
Now, let’s be clear about something: While it’s called a trial, the main event this week in Washington is not a judicial one. Senators take an oath to “do impartial justice according to the Constitution and laws,” but most of the Republicans have no intention of honoring that oath. They might expect the rest of us to be impartial and deliberative when we serve as jurors in civil and criminal trials, but Trump’s supporters in the Senate are shamelessly biased.
“The result of this trial is preordained,” Sen. Ted Cruz, the Texas Republican, said the other day. “President Trump will be acquitted.”
And remember what then-Majority Leader Mitch McConnell said when Trump’s first impeachment came before the Senate: “I’m not an impartial juror. This is a political process. … I’m not impartial about this at all.”
So Trump’s sycophants don’t even try to fake objectivity; they make no pretense to thoughtful consideration of evidence. They’re not interested in being role models of good citizenship for the rest of us. Rather than fear the consequences of acquitting Trump, they believe they’ll be rewarded for it.
It’s galling, especially with mounting evidence connecting Trump to the deadly Jan. 6 attack on the Capitol. The facts and videos presented against him by Maryland Rep. Jamie Raskin and the other Democratic managers from the House have been brutally convincing. But 17 Republicans would have to join 50 Democrats to get a conviction, and that appears unlikely.
Essentially, the Republicans committed to Trump are engaged in a form of jury nullification, one of historic proportions.
We’ve heard a lot of complaints about jury nullification over the years in Baltimore — that is, juries that ignore evidence or reject police testimony to find criminal defendants not guilty. There’s usually a racial dynamic implied in the assertion that jury nullification occurred, and often some racism on the part of those making the assertion.
Black’s Law Dictionary defines jury nullification as “a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.”
Or, in the case of Republican senators, the result is contrary to the jurors’ political ambitions.
Again, I’m conflating politics with law, but for this reason: All of us watching from home recognize what a Senate trial and a court trial have in common: Evidence presented, arguments heard, verdict rendered. When selected to serve on juries, we’re expected to have open minds, listen to testimony and consider facts. We’re expected to find a defendant either guilty or not guilty. We might engage in jury nullification, as some juries have, but that requires ignoring evidence. And, according to the Maryland Court of Appeals, nullification is not an option judges should offer.
Ruling two weeks ago in a Montgomery County case stemming from a 2017 home invasion, the state’s highest court supported a trial judge who called jury nullification a violation of a juror’s oath.
During deliberations in that case, the jury had asked the judge if it had the right to use jury nullification of a charge. That’s a highly unusual question to get, but the judge responded.
“Your verdict must be based solely on the evidence,” he said. “Your choices, based on the evidence, are not guilty or guilty. Reread your instructions.”
The jury came back with a follow-up question about nullification, prompting bench and chamber conferences with the judge, the prosecutor and defense attorneys.
The judge decided to tell the jury the following: “Ladies and gentlemen … you may not use, implement or resort to jury nullification. It is improper, it’s contrary to the law [and] would be a violation of your oath.”
The defendants were found guilty of armed robbery and kidnapping. An appeal of the verdicts challenged the trial judge’s instructions, and the Court of Special Appeals agreed with that challenge, saying the judge’s responses were “legally incorrect and prejudicial.”
The case went to the Court of Appeals, and, in a 6-1 decision, the high court backed up the trial judge. “Although a jury may have the ability to nullify, and we recognize that jury nullification occurs,” the ruling said, “a jury does not have the right to engage in jury nullification.”
So while it might happen, it’s not something the law encourages or a judge should promote. It means a deliberate rejection of evidence and a refusal to apply the law.
Sometimes jury nullification occurs for a well-meaning or even noble purpose: to send a message that it’s time to end the war on marijuana, for instance, or the prosecution of nonviolent drug offenses generally.
But members of the United States Senate ignoring clear evidence of wrongdoing by a president who told big lies and fomented insurrection — that’s not noble. That’s a violation of an oath and an appalling rejection of the rule of law.