The American People Are the Jury

This piece is running in newspapers in my very red district (VA-06).

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The one Manafort juror to go public, Paula Duncan, was a strong supporter of President Trump. She voted for him in 2016, and she apparently plans to vote for him again in 2020.

“I did not want Paul Manafort to be guilty,” she said after the trial in an interview on Fox News. “but he was.” “That’s the part of a juror,” she explained. “You have to have due diligence and deliberate and look at the evidence and come up with an informed and intelligent decision, which I did.”

So she voted to convict Paul Manafort on all 18 counts on which he was charged.

One can plausibly see Ms. Duncan as a testament to the integrity of the American people. She took seriously her responsibility as an American citizen doing jury duty; she deliberated on the evidence presented; and she supported the verdict the facts required.

Such integrity is important, especially as one looks toward the future envisioned last May by President Trump’s public lawyer, Rudy Giuliani, when he declared, “Our jury…is the American people.”

Giuliani was speaking of the fate of his client, Donald Trump, in the face of the Mueller investigation. “[T]he decision here is going to be impeach, not impeach,” Giuliani said. “Members of Congress, Democrat and Republican, are going to be informed, a lot, by their constituents.”

Giuliani makes an important point. Ideally, the members of Congress would vote to impeach, or not impeach — to convict, or not convict — based solely on what the facts say is required to honor their solemn oath to protect and defend the Constitution. But those members would not be where they are had they not been very good at assessing what it takes to achieve the public support necessary to win elections.

And so undoubtedly it will matter, as Giuliani asserts, how the American people assess the case against the President.

But there’s a vital difference between the situation of Paula Duncan and her fellow jurors, and that of “the American people,” of whom Giuliani speaks. The jurors in the Manafort trial listened to testimony, hours a day for two weeks. They knew what the evidence showed. But the American people will not be impaneled and sitting in a jury box. How much attention will they pay to the case of Donald Trump? And how much will they know?

This matters, because if Mr. Giuliani is right, the American people will have a duty to perform far more important to the nation than even that assigned to the Manafort jury.

Right now, polls show that American public opinion is nearly equally divided on the question of whether President Trump should be impeached. (The poll does not show how much the people in either group know of the relevant evidence that’s already publicly available.) But the time has not yet come when it is incumbent on American citizens generally to master the relevant facts as a responsible jury must do to render an informed and fair verdict.

Which is why it’s appropriate for the Democrats, in their current campaign, to place the emphasis on uncovering the truth, rather than to assert any conclusions about impeachment: if the control of Congress is transferred from the hands of the Republicans – who have worked to block rather than to further the uncovering of the truth – the Democrats promise to perform the constitutionally mandated function of bringing the truth to light for the American people to see.

We can also expect that Giuliani’s “jury,” the American people,” will at some point be informed by a report from the Mueller investigation.

By these two means, it will become possible for the American people to render a judgment – founded on a clear picture of what has happened and what it means for the nation — on the question “To impeach or not to impeach.”

But will that happen? To what extent will “the American people” be made into a jury as informed and responsible as the Manafort jury on which Paula Duncan served?

There will be no empaneling of the two hundred million American adults. No having everyone swear before God to render a verdict solely upon the evidence, without prejudice. And no guarantee that these “jurors” – the American people – will have learned what the evidence is, the way Paula Duncan – the pro-Trump juror who didn’t want Manafort to be guilty – was forced to conclude that “the evidence was overwhelming.”

Which leads to two important responsibilities that now face the American body politic:

1) The media have a responsibility to work as hard as is required to enable the average citizens to understand the facts and understand their significance.

It’s already clear that the case of Donald Trump will be far more complex than those of Bill Clinton or even Richard Nixon. The media have a responsibility to lay out what promises to be a many-dimensional picture of scandals with enough clarity that citizens do not throw up their hands in despair of understanding what it all adds up to.

And 2) American citizens have a responsibility to find those media reports that will provide them knowledge of the case that’s at least remotely comparable to what an actual jury gets in a trial. If Fox News continues to function as a propaganda arm for Trump, its habitual viewers have a responsibility to seek out the best of the American press or even of the press in any other democratic society to learn the truth.

We citizens may not have taken an oath to protect and defend the Constitution. But it is our solemn duty nonetheless.