By Donald Trump, whose social media posts fueled his improbable rise to the presidency, has found a new use for his favorite political tool — as ammunition in his legal battle against charges that he falsified business records in New York.
That strategy became clear on the second day of jury selection on Tuesday, as Trump lawyer Todd Blanche repeatedly used old social media posts by prospective jurors to argue that the judge should remove them from the panel for bias.
Behind the scenes, Trump’s defense team is scrambling to find and review potential jurors’ social media accounts, and when they find ones critical of the former president and presumptive GOP presidential nominee, they are racing to show them to the judge to try to get those people dismissed.
The turnaround time for such work is tight — lawyers on the case have been given lists of names of potential jurors, some of whom they have to start questioning in a matter of hours, according to a person familiar with the work, who spoke on the condition of anonymity to describe internal operations.
The defense team is worried it will have to overcome long odds to win an acquittal from jurors drawn from liberal Manhattan, according to people familiar with their thinking who also spoke on the condition of anonymity. On Wednesday, Trump issued a social media post calling it the “2nd Worst Venue in the Country.”
To fight back against what he says is an inherently unfair jury pool, Trump’s defense team hired a jury consulting firm that is analyzing all posts from jurors, according to the person, who declined to identify the firm.
That is not a particularly novel strategy among wealthier defendants who can afford to pay for such work, but it is unique in that it is being applied in a case involving Trump, someone about whom millions of Americans have gossiped, joked, criticized and praised for years — meaning there is far more potential social media material for his lawyers to seize on.
But that work exploring the social media posts of potential jurors is happening under tremendous time pressure.
New York Supreme Court Justice Juan Merchan has been focused on moving jury selection along quickly — seven jurors were sworn in after less than a day and a half of jury selection earlier this week. Ultimately, the process will select 12 jurors and six alternates.
“We had to rush to get all the research done and will have to rush again” on Thursday, when jury selection resumes, said one person familiar with the effort.
That digging is made more difficult by the fact that Manhattan has so many people, meaning it is more difficult to ensure they are reviewing posts from the right person with any given name. In addition, any one person might use multiple social media accounts under nicknames or pseudonyms.
The jury in this case is partly anonymous — their names are known to the lawyers in the case but will not be made public.
Some on the defense team wonder if, now that they showed their tactic in open court, some prospective jurors will start deleting old online posts before court resumes Thursday, this person said.
Trump spokesman Steven Cheung said the charges against the former president were unfair and deliberately filed in jurisdictions that are most hostile to him.
“The deck has been stacked against President Trump in a gross abuse of our legal system, wherein his persecutors have deliberately targeted some of the most Democrat-heavy jurisdictions in the country to bring forth their bogus cases,” Cheung said.
Trump’s defense team used old social media posts to argue against the person in the very first seat of the jury box.
Blanche said that woman “has a series of extraordinarily hostile Facebook posts.”
Merchan appeared confused by Blanche’s assessment. The post at issue was a video on Facebook of a spontaneous street celebration for Joe Biden’s 2020 election victory, with comments suggesting she was also happy about the result.
Prosecutor Joshua Steinglass called the claim “ridiculous.”
Questioned about it in court, the woman explained that she found herself witnessing a historic event near her home when she left the house to move her car that day, and she emphasized that she knew she could still be a fair juror.
If Merchan decides a person would not be fair and impartial, he can excuse any prospective juror. Otherwise, if either side objects, they too can strike some jurors from the panel — but each side only gets 10 so-called peremptory challenges.
In the matter of the prospective juror’s old Facebook video, the judge refused to dismiss her for cause, so Blanche used one of Trump’s challenges to dismiss her. The back-and-forth made it clear the defense was scrambling, even as his lawyers argued in court, to do quick searches on the people who seemed most likely to be chosen as jurors from a larger pool that had been summoned for jury duty.
Trump’s defense team has taken the position that old critical or mocking online statements about him are evidence of bias and grounds for removal. Steinglass argued that in many instances, the age of the posts alone may make them largely irrelevant, not to mention that some of those raised in court appeared to be internet humor.
On Tuesday, Merchan’s judgment on the social media hewed closer to the prosecutors, but he did agree with the defense that one old comment crossed the line.
In that instance, the prospective juror years ago had written “lock him up” in reference to Trump, who was president at the time.
“Everyone knows that if Mr. Trump is found guilty in this case, he faces a potential jail sentence, which would be ‘lock up,’” Merchan said. “I don’t think that I can allow this juror to remain.”
At Merchan’s mention of the possibility of jail, Trump shook his head slightly in disgust.
So far, the judge has been mostly skeptical of the defense claims of dangerous bias exhibited by old social media posts.
Jurors questioned in court about their old social media posts were often defensive and dismissive of the suggestion that the old posts revealed anything important about their views or ability to be fair.
“If you look at my social media, you can see there is very little on there that I post now that has anything to do with politics, it got too vitriolic for people, people that I knew for years,” said one woman who had posted political parody and humor items in 2018 that the defense said showed she was anti-Trump. “I may have posted this, but I learned a good lesson from it.”
If the judge continues to disagree with the defense’s arguments about most of the jurors’ social media posts, Trump could burn through his allotted number of challenges quickly and be left with little say over the remaining members of the panel. Trump is also allowed two peremptory challenges for every alternate juror.
In court Tuesday, Blanche suggested he might make future challenges to juror selections based on additional discoveries of social media posts related to his client.
Merchan said the pace of jury selection means opening statements could take place Monday, and if that schedule holds, Trump’s online researchers have only a few days more to try to influence the makeup of the jury.
Increasingly, courts have had to wrestle with problematic social media posts that came to light only after a jury is seated or after a verdict has been rendered.
That was the case in the prosecution of longtime Trump adviser Roger Stone, who tried to get his conviction for lying to Congress dismissed after finding out that the forewoman of his jury had posted on social media about his arrest and posted again shortly after his conviction.
The bar for a court to toss out a conviction based on juror misconduct is very high, and Stone’s bid was unsuccessful, though he later received a pardon from Trump.
