One Way Outraged Americans Can Beat Robert Mueller

Much has been made of the pre-dawn arrest of Roger Stone in his home in Fort Lauderdale. To make this arrest, Special Counsel Robert Mueller, probably having delegated the task to his subordinate Andrew Weissmann (who is known for this tactic), assembled a full-scale FBI SWAT team of 29 members, replete with long weapons, body armor, and even a flash-bang grenade or two. The arrest took place at "zero dark thirty" or 5:30 A.M. Nevertheless, a CNN crew was on hand to film the whole thing. Once upon a time, this level of force was considered necessary only to raid suspects able and inclined to shoot back, or who might destroy evidence. Think Symbionese Liberation Army or drug kingpin Frank Lucas of American Gangster fame. In such cases, in which the suspects really might shoot back, a television crew would never be allowed, on the grounds that they could be killed in the crossfire. The fact that a CNN crew was allowed to film Stone's arrest is evidence that nobody believed he was dangerous. Indeed, he was not: he is a 66-year-old white-collar suspect with no prior history of violence, who didn't even have weapons in his house. Even the judge processing Stone's arraignment implicitly accepted that Stone was not dangerous; he allowed Stone to be released on a $250,000 surety bond.

The usual procedure in white-collar cases is not to assemble an unnecessary SWAT team. Instead, the Justice Department informs the suspect's attorney that the suspect has been indicted and needs to turn himself in to whatever courthouse for arraignment. The attorney informs the suspect and usually surrenders his client peacefully in the courthouse. No guns, no flash-bangs, no pre-dawn raids. Alan Dershowitz has said the only purpose of this level of force is to intimidate the mark into flipping on someone higher. In the case of Roger Stone, that can mean only President Trump. Nor is Stone the only white-collar suspect to feel Mueller's wrath. Former Trump campaign manager Paul Manafort got it much worse. Manafort not only was subjected to the same kind of pre-dawn raid as Stone, but also denied bail and held in solitary confinement – before his trial. All suspects are, legally, presumed innocent until they have been duly convicted. The government has a positive duty to treat all suspects as decently as possible until their convictions. Tactics such as the ones employed on Stone and Manafort are an outrage and instances of government tyranny. Alan Dershowitz opined that the ACLU ought to be up in arms over this kind of arbitrary treatment of Manafort but that he wasn't holding his breath. (Dershowitz himself resigned from the ACLU a few years ago.) Is there anything we, the citizenry, can do about this violation of our rights? Actually, there is: jury nullification. It is the public's final sanction against abusive, arbitrary, and tyrannical government power. Jury nullification is the refusal of a jury to convict a defendant, no matter how irrefutable the evidence against the defendant is. Law professor John Joseph Duane calls it the "Top Secret Constitutional Right." It's "top secret" because no judge or prosecutor ever likes to admit that any jury can always tell him to go take a hike. Professor Duane says the absolute right of a jury to implement jury nullification is enshrined in the Double Jeopardy Clause of the Fifth Amendment, and also in the Sixth Amendment's guarantee of a right to a jury trial whose verdicts no judge has the power to overturn. Jury nullification has a long history in the United States. Colonial juries used it to refuse to convict in "maritime cases" (presumably, that means smuggling). Before the Civil War, juries composed of abolitionists used it to refuse to convict defendants accused of violating the Fugitive Slave Act, much to the rage of the South. During Prohibition, juries used it to refuse to convict in cases of violations of the Volstead Act. One estimate has it that juries nullified as many as 60% of all Prohibition cases. And, shamefully, all-white juries in the South used it to refuse to convict white men accused of murdering blacks. The Emmett Till case is the most notorious instance of this abuse. Jury nullification can also be used to rebuke abuses of power committed by unaccountable, out-of-control special counsels like Robert "Gestapo" Mueller. How much egg would end up on Mueller's face if, after all of his efforts, Roger Stone's jury refused to convict? Naturally, the last thing Mueller will ever do is publicize the fact that the public can actually tell him to go stuff it. The author is an Iowa truck driver known to some AT readers as Kzintosh. Image: James Ledbetter via Flickr.