Thursday Proved the True Difficulty of Picking Jurors to Assess Donald Trump

Read our ongoing coverage of Donald Trump’s first criminal trial here.

Today, the People of New York v. Trump resumes with the third day of jury selection in lower Manhattan. The first two days yielded seven jurors out of the 96 in the early potential pool, while today began with a plan to attempt to seat the additional five jurors and a number of alternates. The process thus far has also offered clarification on two of the biggest questions that have been swirling around voir dire: How is it even possible to select an impartial jury in a case involving the most polarizing figure in modern American history? And also—who would even want to be a juror on this case?

In the overflow room where almost all of the media have been watching the jury selection process, it’s not possible to see the jurors’ faces. But it hasn’t been that hard to get an impression of the prospective jurors from their answers to the jury questionnaire and voir dire questioning from the attorneys. Of the 96 initial members of the first jury pool, a full 62 opted out before even answering a single question from the questionnaire itself.

The remaining jurors for the most part shared similarly Manhattanite media diets, with nearly all of them reading the New York Times and many listening to NPR. During Monday’s questioning, laughter broke out among the press corps when back-to-back early jurors listed NPR as the radio station they listen to most. So to type were some of these jurors that on Tuesday when one said he listened to “sports podcasts,” a journalist next to me predicted he’d name Pardon My Take! a split second before the juror announced it himself.

More than their media diets, attorneys from both sides—but especially the defense—are interested in jurors’ personal and political opinions of Trump himself. Question No. 34 gets to this, asking jurors:

In some ways it’s a strange question. I mean, who doesn’t, right? Still, this is the crux of what jury selection needs to accomplish—to find jurors who can put aside their opinions of Trump one way or the other and rule on the facts of the case and the law as instructed by the judge.

The most contentious portions of voir dire questioning came in the defense team’s follow-ups to question 34. One of the first jurors to go through the questionnaire, a young woman from Texas who now lives in Harlem, answered “yes” when she got to question 34. She was belatedly excused. Another woman (or maybe, honestly, the same woman; we can’t tell who is who) was shortly thereafter heard by a press pool member outside of the courtroom saying “I just couldn’t do it.” The “it” in this instance is unclear … or is it? Maybe she couldn’t put aside her opinion of Trump. Maybe she couldn’t pretend to put aside her opinion of Trump. Maybe she simply didn’t want to take a seat placing herself at the center of one of the biggest criminal cases in U.S. history.

What kind of person can “do it”? The follow-ups Trump attorney Todd Blanche asked in response to question 34 in voir dire were illuminating on this front.

The first, and hopefully smallest, group of “want to do it” jurors are the ones who clearly really, really love or really, really hate Donald Trump (many more of the latter in NYC). These people love or hate Trump to the point that they shouldn’t be on this jury, but for whatever reason felt like they could still try. It seems as though all of these people ultimately had second thoughts and decided against taking part, or were weeded out by voir dire.

Of the pro-Trump group, one potential juror who seemed intent on serving changed his mind at the last minute. “As much as I would love to serve for New York and one of our great presidents,” he ultimately didn’t think he could miss work, the juror said. Another juror—a finance accountant from Texas whose fraternity brother is a Republican legislator—went through almost all of the questionnaire before saying that, because “a bunch of family friends are Republicans, it’s probably going to be tough for me to be impartial.” Another juror, who worked in real estate development, kept referring to Trump as “President Trump” rather than “former President Trump.” He had read Art of the Deal, and described himself as “an admirer from afar” of Trump’s real estate career. He also said that there was “nothing here … that would any way bias me,” but he was eventually struck by the prosecution with a peremptory challenge. (Each side has 10 of these not-for-cause removals that they can use on any juror and for any reason.)

Of the anti-Trump group, some were caught by the Trump team’s efforts to research their Facebook pages, where they found clear bias. One who insisted that he could be impartial, and said “I don’t have a strong opinion either way” about Trump, had nonetheless posted about Trump’s Muslim ban in 2017: “Get him out and lock him up. Watch out for stupid tweets by DJT.” Judge Juan Merchan removed the juror for cause after he struggled to explain himself. Another juror had posted a video on Facebook of the Manhattan celebrations following the declaration by the media that Joe Biden had won the presidency on the Saturday after the 2020 election with a caption encouraging cheering. She, however, came up with a satisfactory explanation for the judge: She said that the moment reminded her of New York City’s “seven o’clock cheer for health care workers,” which she had watched daily with her kids during the height of the initial COVID wave. The same juror had also previously said “I’m not 100 percent sure that I can be fair … I can try.”

It was Trump’s response to this juror that prompted the judge to his angriest moment of the first two days. When this juror was up on the stand to be asked about the video, Trump just lost it. Merchan was furious, and scolded Trump’s lawyer: “Mr. Blanche, while the juror was at the podium maybe 12 feet from your client, your client was audibly muttering something, he was audible, he was gesturing, and he was speaking in the direction of the juror,” he said. He then forcefully concluded: “I will not have any jurors intimidated in this courtroom! I want to make that crystal clear!”

Ultimately, the juror was not struck for cause, as Blanche practically begged for. “I don’t see anything here that’s offensive,” Merchan told Blanche about this juror’s Facebook post, before adding: “When I looked at it, I wasn’t sure if you gave me the right thing.” It feels safe to assume that Trump’s outburst may have impacted the judge’s decision, and Blanche was forced to waste one of his peremptory challenges on the juror, who has been removed from the jury pool.

Even as Trump was unpleasant, Blanche came across as very sympathetic. He did his best to suss out which jurors might especially hate his client and have them removed from the trial. This work probably got some of the worst potential jurors for Trump out of the pool.

Still, a number of apparently anti-Trump jurors did their best to try to convince even themselves that they could be fair. One juror gave incredibly thoughtful answers about why she felt she could be impartial despite apparent antipathy to the former president. (Her media diet included MSNBC and Ezra Klein’s podcast, and she said during the questionnaire phase that she didn’t know how “Occupy Democrats” had gotten on her Facebook page but was annoyed by it.) “I consider myself a thoughtful person and I understand how important this is to everybody here,” Juror 128 said. “I think I’ll be able—I know I’ll be able to separate my policy issues from what’s going on here.” In questioning with Blanche, she seemed very sympathetic to the president’s lawyer. “I understand your dilemma, I really do,” she said. “You want your client to have a fair shake here, just as DA does. I will do my levelheaded best to make sure that happens.” She seemed to want it too, noting that “I didn’t sleep last night thinking about, how could I really do this?” Ultimately, she concluded she could be impartial, because the case is “just so important.”

Things then got contentious: After trawling Facebook, Trump’s team discovered that Juror 128 had posted a Borowitz Report article titled “Republicans Projected to Pick up Seventy Seats in Prison.” When asked about it, Juror 128 stated matter-of-factly, “I do like satire and cartoons and irony. And I do read the Borowitz Report. I like it very well.” This persuaded the judge, who said that the juror’s posts were “fairly characterized as satire,” denying Trump’s for-cause objection. So Blanche had to use yet another one of his peremptory challenges to knock Juror 128.

Ultimately, these were the jurors that were forced off of the jury in the first two days of selection: Jurors who really, really believed they belonged on the pool, despite harboring really, really strong feelings about Trump.

Who made it into the jury? Those who remained tight-lipped, but also presented seemingly no baggage. One potential juror outright laughed when she got to question 34, before responding that despite the humor in asking people if they have “strong opinions or firmly held beliefs about former President Donald Trump,” “I will be fair and impartial.” This was Juror 297, who ultimately took the seat at the Trump trial as Juror No. 6. Throughout the rest of questioning, her views of Trump were completely opaque.

One juror who made it onto the jury, Juror No. 2, backed out on Thursday, saying that identifying information had been published in the press and that she had family members “push things to my phone regarding questioning my identity as a juror.” (Slate and other outlets reported information about the juror, who is an oncology nurse, as it had been reported publicly at the court that day.) “I don’t believe that at this point I can be fair and unbiased,” the juror said, before being excused. After the juror’s removal, the judge requested that information about jurors’ employment be redacted from the official transcript and that reporters not include that information in their press reports going forward. He also requested that reporters not report physical descriptions about the jurors, citing an outlet describing an “Irish accent” of one of the jurors.

A second seated juror was also removed from the jury after the prosecutors discovered that he may not have responded truthfully to questions about his own arrest record and his family criminal history. According to the district attorney, a person with the same name had been arrested in the 1990s for tearing down political posters “on the political right.” (This was the juror who had described Trump as fascinating to him.) The DA also reported that the person’s wife had also had interactions with the Manhattan District Attorney’s office in the 1990s, which he did not report. All of this would call into question the juror’s honesty and ability to serve impartially. The court ultimately questioned him and he was removed from the jury by the judge.

Which means that midway through the third day of court, there are now seven more seats to fill. We’ll see if the former president himself can act a bit more neutrally in the back half of the week.