How to pick a jury that can judge Donald Trump

Former President Donald Trump’s criminal trial in New York begins Monday with an immediate and fundamental challenge: selecting a jury that can fairly judge one of the most famous and polarizing figures alive.

“Picking a jury in a case involving someone as familiar to everyone as former President Trump poses unique problems,” Joshua Steinglass, the senior trial counsel in the office of Manhattan District Attorney Alvin Bragg, said at a recent hearing — in what may be the understatement of the year.

How, precisely, to pick a Trump jury — 12 people and a handful of alternates — is a question that prosecutors and lawyers for Trump have been grappling with in several state and federal courts for months. Trump last week called the process “pure luck.” His lawyers will spend the next week hoping to prove him wrong.

In the Manhattan hush money case, jury selection is set to begin Monday, and Justice Juan Merchan has already settled on a questionnaire for prospective jurors. In the pending federal criminal trial in Florida, special counsel Jack Smith and Trump’s lawyers have proposed competing sets of jury questionnaires while they inch toward a potential start later this year. And Trump has already faced two other juries over the past year in civil lawsuits in which he was found culpable for sexually abusing and defaming the writer E. Jean Carroll.

POLITICO has reviewed jury-related filings and transcripts from those criminal and civil cases. What’s emerged are the contours of a strategy aimed at getting inside the minds of jurors tasked with sitting on some of the most consequential trials in American history — and identifying the ones who can tune out noise, politics and pressure in order to judge the man only on the evidence presented in court.

Picking a jury is more art than science, designed to expose potential jurors’ explicit and implicit biases and smoke out even a well-meaning person’s subconscious leanings. To that end, prosecutors and defense lawyers, working with judges, typically craft interview questions aimed at delving into the minds of prospective jurors, sometimes in roundabout ways that can seem odd or invasive.

When the defendant is Trump, those challenges are magnified. He’s attacked prosecutors and judges, earned blanket media coverage across the nation and used his social media reach to convince millions of supporters that the criminal cases against him are politically motivated.

Trump’s lawyers say it is virtually impossible to pick a fair jury in bright blue cities like Atlanta, New York or Washington, where three of his criminal cases are advancing, and they have proposed moving Trump’s D.C. trial to West Virginia, some of the Trump-friendliest turf in America. But prosecutors and many judges say they’re wrong — that even in populous, heavily Democratic areas, it’s possible to find a dozen citizens who can set aside personal beliefs to judge the facts of the case, and that the Constitution strongly favors bringing a trial in the district where the alleged crime occurred.

The goal, in theory, is to pick a jury that’s entirely impartial, but seasoned prosecutors and defense lawyers always hope to nudge the process to ensure the final panel includes jurors who might be favorable to them. And in a case involving Trump, all lawyers and judges have to be on guard for potential jurors who are so motivated to be picked, they tailor their answers to avoid raising red flags.

In Manhattan, as an added protection, after several dozen potential jurors make the initial cut, Trump’s lawyers and prosecutors will each get to strike 10 of them from the pool, whittling it down to the final group that will judge the case.

Throughout all of his cases, Trump’s criminal prosecutors, civil adversaries and his own defense attorneys have revealed the outlines of a strategy to seat a jury. Here’s what that strategy looks like:

What prospective jurors think about Donald Trump, the person

A starting point is identifying prospective jurors with strong feelings about Trump, his presidency and the criminal cases he faces. Each side wants to figure out whether any potential jurors actually know Trump, worked for his businesses or have a direct relationship with him or his family members. But mainly, the lawyers are trying to suss out any inherently strong feelings — positive or negative — about Trump.

Merchan, on the other hand, says he wants to limit efforts to determine whether prospective jurors like or dislike Trump.

“Such questions are irrelevant because they do not go to the issue of the prospective juror's qualifications,” he wrote in an order last week finalizing the questionnaire. “The ultimate issue is whether the prospective juror can assure us that they will set aside any personal feelings or biases and render a decision that is based on the evidence and the law.”

Here is a sampling of some questions in this category:

What Trump’s attorneys wanted in the Carroll cases

“What are your thoughts on Donald Trump as president of the United States?”

“Have you formed any opinions regarding Mr. Trump’s truthfulness?”

“Would you feel pressure from family, friends or other sources to reach a certain verdict in a case involving Mr. Trump?”

What Jack Smith and Trump’s lawyers want in Florida

“Donald J. Trump is a well-known public figure. Do you have any opinions, feelings, or beliefs about Mr. Trump?”

“Have you posted any comments on social media about Mr. Trump, this investigation, or this case?”

What Merchan is doing in New York

“Do you have any strong opinions or firmly held beliefs about former President Donald Trump, or the fact that he is a current candidate for president that would interfere with your ability to be a fair and impartial juror?”

“Have you, a relative, or a close friend ever worked for any company or organization that is owned or run by Donald Trump or anyone in his family?”

What prospective jurors think about Trump’s legal predicaments

In each case, lawyers and judges are also grappling with another challenge unique to Trump: all of the other cases that have been brought against him — and Trump’s refrain that he’s the target of political prosecutions.

Prosecutors and defense attorneys want to identify whether any prospective jurors have been influenced by that rhetoric or anything else they’ve heard about the case in ways that would make it impossible for them to be fair. They also want to know more generally whether jurors have formed opinions about the prosecutions of a former president.

Judges generally don’t view a juror’s politics as relevant, so long as they vow they can put them aside. In high-profile D.C. cases following the Jan. 6, 2021 attack on the Capitol, judges across the ideological spectrum rejected defendants’ efforts to transfer their cases by citing the District’s anti-Trump leanings. (Trump won just 5 percent of the vote in 2020.)

A sampling:

What Trump’s lawyers asked for in the Carroll cases

"Are you aware of criminal investigations pending regarding Mr. Trump? If so, what are your thoughts on those investigations?”

"Would the criminal investigations interfere with your ability to be fair in this case?”

What Smith wants in Florida

"Have you read about or heard about the FBI’s execution of a search warrant at the Mara-Lago Club in August 2022?”

"Have you seen, read about, or heard about any statements by Mr. Trump about this investigation?”

"Do you believe that the investigation or prosecution of Donald J. Trump by the Department of Justice and the FBI is unfair?”

"Do you have any opinions or concerns about a former President of the United States being charged with a crime?”

What Merchan is doing in New York

“Do you have any strong opinions or firmly held beliefs about whether a former president may be criminally charged in state court?”

“Do you have any feelings or opinions about how Mr. Trump is being treated in this case?”

Do prospective jurors harbor insurmountable political bias?

This is where things get diciest. Prosecutors and defense lawyers for Trump are both keenly interested in catching any whiff of political bias from a prospective juror. But all sides acknowledge that simply belonging to or identifying with the Republican or Democratic parties is not a reason to disqualify a prospective juror.

Yet prosecutors, both state and federal, as well as Trump’s lawyers have loaded up their questionnaires with attempts to divine the political leanings of prospective jurors and whether those biases might be insurmountable. While some of the questions are obvious, others are more subtle. Merchan even plans to ask whether jurors affiliate with a host of anti-government groups — some, like the Proud Boys and Oath Keepers, famously pro-Trump, and others, like antifa, famously hostile to the former president.

What Trump lawyers wanted in THE Carroll caseS

"During the 2016 and 2020 presidential elections, were you actively involved in political campaigns against Mr. Trump? If so, please explain your involvement.”

What Smith and Trump lawyers want in Florida

"Have you, your spouse/partner, a family member, or a close friend ever worked for a candidate for elected office or an elected official, in any capacity (volunteer or paid)?”

"Have you, your spouse/partner, a family member, or a close friend ever worked for, volunteered for, attended a fundraiser for or made a campaign contribution to a candidate for elected office (state-wide or federal office), a political campaign, or to a political action committee?"

"Have you, your spouse/partner, a family member, or a close friend ever attended a political rally in connection with a candidate running for elected office (state-wide or federal office)?”

"Have you, your spouse/partner, a family member, or a close friend ever run for, or held, elected office in a city, county, state, or federal government?”

"In the last five years, have you displayed a bumper sticker or magnet on your car?”

What Smith wants in Florida

"Do you believe the 2020 U.S. presidential election was stolen?”

"Do you have any opinions, feelings, or beliefs about the U.S. Department of Justice or the FBI?”

What Merchan is doing in New York

"Have you ever considered yourself a supporter of or belonged to any of the following: - the QAnon movement - Proud Boys - Oathkeepers - Three Percenters - Boogaloo Boys - Antifa”

"Have you, a relative, or a close friend ever worked or volunteered for a Trump presidential campaign, the Trump presidential administration, or any other political entity affiliated with Mr. Trump?”

"Have you ever attended a rally or campaign event for Donald Trump?”

"Are you signed up for or have you ever been signed up for, subscribed to, or followed any newsletter or email listserv run by or on behalf of Mr. Trump or the Trump Organization?”

"Have you, a relative, or a close friend ever worked or volunteered for any anti-Trump group or organization?”

"Have you ever attended a rally or campaign event for any anti-Trump group or organization?”

"Are you signed up for or have you ever been signed up for, subscribed to, or followed any newsletter or email listserv run by or on behalf of any anti-Trump group or organization?”

"Do you currently follow any anti-Trump group or organization on any social media site, or have you done so in the past?”

How do prospective jurors get their news?

Often, one of the most instructive questions for ferreting out bias is to ask prospective jurors what news outlets they read or watch, and what social media platforms they use regularly. Though it’s not a science, Trump’s lawyers will certainly reserve more pointed questions for a devout MSNBC fan or New York Times reader, while prosecutors may look askance at someone who routinely watches Fox News Channel or Newsmax.

Though political actors in Washington often assume these preferences are all but determinative, it’s worth noting that a juror who routinely listens to pro-Trump podcaster Tim Pool was among those who found Trump liable for sexually assaulting Carroll, and jurors who have identified as Fox News watchers have found Jan. 6 defendants guilty in D.C. criminal cases.

Still, these questions often lead to the most interesting follow-ups that provide insight into prospective jurors’ minds.

What Trump’s lawyers wanted in THE Carroll caseS

”How often do you read the news (whether online or in print)? Which outlet(s)?”

”How often do you watch cable news? Which network(s)?”

“Have you ever used social media sites or platforms? If yes, which sites or platforms?”

What Smith and Trump lawyers want in Florida

“What are your main sources of news and commentary?“

”Do you listen to or watch podcasts?"

”Do you listen to talk radio?”

”Please indicate which social media platforms you view, or on which you have an account, and indicate how often you check them. (Facebook, Gettr, Instagram, Snapchat, Truth Social, X, Threads, Other)”

”Have you ever appeared on any television or radio news or politics program, or any news or politics podcast (including through a viewer/listener call-in)? “

”Have you ever written or been quoted in any newspaper article, news magazine article, media report, book, or other published work?”

What Merchan is doing in New York

”Which of the following print publications, cable and or network programs, or online media such as websites, blogs, or social media platforms do you visit, read, or watch? (Read aloud): New York Times; Wall Street Journal; USA Today; New York Post; New York Daily News; Newsday; Huffington Post; Washington Post; CNN; Fox News; MSNBC; Newsmax; MSN; Google; Yahoo; Facebook; Truth Social; X; I do not follow the news; Tik Tok; Other (name)"

”Do you listen to or watch podcasts? If so, which ones?”

”Do you listen to talk radio? If so, which programs?”

”Have you read (or listened to audio) of any of the following books or podcasts by Michael Cohen or Mark Pomerantz? If so, please let us know if what you have heard or read affects your ability to be a fair and impartial juror in this case: Disloyal: A Memoir (2020); Mea Culpa (the podcast); Revenge (2022); People Vs. Donald Trump (2023)”

”The defendant in this case has written a number of books. Have you read (or listened to audio) of any one or more of those books? If so, which ones?”

Wildcards

There’s a whole category of questions that are just plain personal. They’re a bit off-beat and seem aimed at tapping into aspects of potential jurors’ personalities that might, once again, reveal potential leanings or biases. Some of them read like essay questions on a college application, and others seem like philosophical questions that don’t immediately translate to jury service. But it’s all part of the attempt to psychologically profile jurors who might look impartial on paper but harbor deeper beliefs that emerge upon prodding.

What Smith and Trump’s lawyers want in Florida

”Please name three people you admire the most, and explain why”

”Please name three people you admire the least, and explain why”

”What hobbies, interests or activities do you enjoy in your spare time?”

”Please list any organizations to which you or your spouse/partner belong, or in which you participate, or to which you have donated money, either now or in the last 5 years. Please include any civic, social, religious, charitable, volunteer, political, sporting, professional, business, union, fraternal, and recreational groups”

What Smith wants in Florida

”Have you ever changed your mind about an important decision you had to make in your life?”

What Trump’s lawyers wanted in the Carroll case

"Please list any organizations that you belong to or actively support by donating money or time:"

"Have you or anyone close to ever sued someone or accused someone of serious wrongdoing?"

"Have you or anyone close to you ever been sued or wrongfully accused of serious wrongdoing?"

What Merchan is doing in New York

"What do you like to do in your spare time? Do you have any interests or hobbies?"

"Do you participate in any organizations or advocacy groups? Which ones?"

The greatest ability: Availability

In every criminal case, there are baseline facts that lawyers and judges need to know. They include whether someone has ever been the victim of a crime and might have developed views about law enforcement as a result.

Those questions also include whether someone has experience as a lawyer, or whether their close friends and family do. This is to ensure that people who believe they have knowledge of the law don’t try to substitute their views for the judge’s instructions about the case. And for the same reason, they want to know whether any potential jurors have sat on grand juries or other trial juries in the past, and if they’re able to disregard those processes to focus on the current case.

Even more basic but no less important: Judges and lawyers need to know whether prospective jurors have child-care commitments, or medical conditions that would affect their ability to sit through a potentially lengthy case, or make them feel rushed during deliberations. That may screen out large swaths of the jury pool.