As the Justice Department continues its targeting of President Donald Trump’s perceived political enemies, most recently with the indictment of former FBI Director James Comey, one author and journalist is highlighting a potential tool in the United States’ justice system that could act as a last-minute safeguard against political prosecutions.
“The prosecution of Trump’s political enemies requires the assent of a jury of their peers, and their peers can say no,” argues author and journalist Adam Serwer in an analysis published Monday in The Atlantic.
“They can say: ‘we do not accept this corruption of the law and the Constitution; we do not accept the use of public authority as a mechanism of mafia-style coercion; we do not accept that a president who seems to believe that he is a king can throw his enemies in prison.’ That is the jury’s right.”
Serwer was referring to a jury’s right to deliver a verdict absolving an accused individual of guilt, even in instances where their supposed guilt is evident, typically done so when a jury perceives the underlying law to be unjust.
Known as jury nullification, this process has been used throughout American history to absolve individuals of guilt, sometimes to absolve those accused of lynchings in the late-19th and mid-20th centuries, and other, more recent examples include a jury’s decision to absolve “sandwich guy,” a federal employee who threw a Subway sandwich at a federal law enforcement agent amid Trump’s takeover of Washington, D.C.
With Trump now encouraging the prosecution of Comey, who he has long perceived as his political foe, critics fear no enemy of Trump’s is safe from Trump’s DOJ. Those fears have been exacerbated in the wake of the killing of right-wing influencer Charlie Kirk, which has sparked a number of threatening comments from Trump officials, including White House advisor Stephen Miller, who labeled the entire Democratic Party as a "domestic extremist organization.”
And now, Serwer is pointing to jury nullification as among the most powerful tools to stave off the Trump administration’s wrath.
“These campaigns are grotesque corruptions of the original purpose of the Justice Department, which was founded under Ulysses S. Grant’s administration to enforce the Civil War amendments and protect equality under the law,” Serwer wrote.
“When Trump tries to indict his political enemies on pretextual grounds, grand jurors have the option of refusing to indict,” Serwer wrote.
“When prosecutors ask for a conviction, jurors can refuse to convict. The Trump administration can treat this government of the people as his own mob enforcers, but the people need not acquiesce. When Trump abuses his power to settle political scores, the people can choose to nullify.”