Opinion: A unanimous jury won’t convict Trump

Photo/Desiree Rios/The New York Times / Former President Donald Trump speaks at an event in Davenport, Iowa, on March 12, 2023.
Photo/Desiree Rios/The New York Times / Former President Donald Trump speaks at an event in Davenport, Iowa, on March 12, 2023.

Given the intensifying criminal investigations into Donald Trump, many think he might finally pay for his crimes. Some even believe a conviction and jail sentence could prevent Trump from retaking the presidency if he wins next year's election.

If only wishing made it so.

Donald Trump isn't going to jail. And the only thing standing between him and the Oval Office is the ballot box.

Trump has, of course, committed numerous crimes. He deserves to serve time. And the world would be better off if he was forcibly removed from the campaign trail.

But none of that matters. Trump isn't going to jail because the burden on prosecutors to get him there is simply too high. In a little-noticed case in 2020, the United States Supreme Court held that a unanimous jury verdict is always required to convict someone of a serious crime. Justice Gorsuch, writing for the court, explained that this principle is rooted in the United States Constitution: "This court has repeatedly and over many years recognized that the Sixth Amendment requires unanimity."

For a prosecutor to obtain a conviction, six to 12 jurors (depending on the jurisdiction) must all agree that a defendant is not only guilty but guilty beyond a reasonable doubt. This is a good standard for the broader population: There should be a very high bar to convict someone of a crime. But it's quite a loophole for a politician with a historically loyal base and a 40% favorability rating. The likelihood, in any trial, that Trump can't nab a single hold-out juror -- even in the face of obvious guilt -- is extremely low.

Sure, jury selection has some safeguards to eliminate biased jurors. Each side, for example, can strike a limited number of potential jurors for any reason. And the judge might exclude those with partisan paper trails on social media. But neither a prosecutor nor a judge can enter the minds of potential jurors and confidently eliminate loyal Trump supporters.

This dynamic often deters prosecutors from charging Trump to begin with. No one wants to go down in history as the schmuck who lost to Trump in court. In New York, for example, prosecutors declined to charge Trump even though his company was convicted for -- and his CFO pleaded guilty to -- numerous financial crimes. It's hard to fathom a stronger basis on which a prosecutor could pursue white-collar charges. Yet Trump emerged unscathed.

So America finds itself neck-deep in yet another Trump-induced exigency, barreling forward into some nebulous jeopardy, the shape and magnitude of which are unclear. Will Trump be indicted? Will he strike a deal with prosecutors? Will he win the Republican nomination? Hard questions abound. But one conclusion is easy to reach: A unanimous jury of Trump's peers isn't going to convict him of a serious crime.

Donald Trump may be indicted in the near future. But America's conscience already has been. It's an alarming commentary on the American polity that Trump's offenses -- whether or not they result in a conviction -- don't rule out his return to office. In a country that imprisons more people per capita than any other developed nation, the guy who tried to overthrow a presidential election not only walks free but is the Republican front runner to regain the presidency.

A few thousand years ago Aesop supposedly made an insightful observation about criminal justice: "We hang the petty thieves and appoint the great ones to public office."

Oh, how little has changed.

William Cooper, an attorney, is the author of "Stress Test: How Donald Trump Threatens American Democracy."