According to the law, Robert Morris was a criminal. The second Black lawyer in the history of the United States, Morris was among a group of abolitionists who, in 1851, stormed a Boston courtroom to free Shadrach Minkins, an escaped slave from Virginia. Minkins had been detained under the Fugitive Slave Act and was to be returned to his master.
Morris filed a writ of habeas corpus on Minkins’s behalf, but the effort failed because Minkins was property in the eyes of the law. After being rescued, Minkins escaped to Canada, where the arms of man stealers and flesh traders could not reach him. Morris was left to face the consequences and was indicted in federal court; his fate was left to a jury.
The law was clear, and under it, Morris was likely guilty—yet the jury did not convict. In modern parlance, some of the jurors “nullified” the case: They decided that a tyrannical law was not worth enforcing. And they were right.
Jury nullification is an old weapon against tyranny. America’s founding generation saw juries as charged with determining not just fact but also law—that is, jurors could decide to acquit the accused, even those who seemed guilty of what they were charged with, if jurors believed that the law itself was unjust. An 1895 Supreme Court case, U.S. v. Sparf, involving a murder at sea, officially stripped juries of the right to decide the law, ruling that they could consider only the facts of the case and how those facts relate to the law. Juries can still nullify, however, because judges have no authority to review a verdict of “not guilty.”
Jury nullification has long had a bad reputation because of the crime it was frequently used to cover up: lynching. For generations in the South, all-white juries nullified accusations of murder involving lynchings, many of which were carried out with the participation of a town’s politicians, law enforcement, and leading businessmen. Unable or unwilling to point to the culprits, coroners would describe the murders with the haunting phrase “death at the hands of persons unknown.” Whether out of fear for their own safety or in solidarity with the murderers, jurors who refused to indict ensured that extrajudicial killings in the South were rarely punished. A tool meant to prevent tyranny was instead used to enforce it.
Yet as the Morris case shows, the tool itself is not inherently evil. Jury nullification is neutral, its morality defined by the cause for which it is employed. Now that President Donald Trump is perverting the Justice Department into an instrument of political persecution, jury nullification may be one of the only mechanisms that everyday Americans have to protect the rule of law.
Last weekend, Trump complained that “nothing is being done” to indict his political enemies, including James B. Comey, the former FBI director. On Thursday, Comey was indeed indicted, accused of lying to Congress; Comey released a video saying he’s innocent and not afraid of a trial. Prosecutors initially passed on the case, believing that the evidence was weak. But more politically motivated prosecutions are likely to follow, and the targets may not have the allies and resources that Comey has, or his connections among the legal elite. If jurors are convinced that the cases brought before them are unjust, we are likely to see a revival of nullification.
The prosecution of Trump’s political enemies requires the assent of a jury of their peers, and their peers can say no. 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. Every time Trump tells his lackeys in the Justice Department to prosecute his foes, the jury should refuse to let him do it.
In some places, this is already happening. People called to serve on a grand jury in Washington, D.C., have consistently refused to aid the Trump Justice Department’s attempts to throw the book at people in marginal cases, such as those prosecuting people who protested ICE raids and the former Justice Department employee who threw a sandwich at a federal agent. Jury nullification does not have to serve only elites. The wife who is indicted for obstruction for trying to protect her undocumented husband from being snatched by federal agents, the protester who is charged with assault for being thrown to the ground by a man with a badge and a gun—anyone charged or overcharged for resisting an unjust system of political persecution is entitled to the protection of a jury of their peers.
That category seems likely to grow. On Thursday, Trump signed a memo declaring his government’s intention to “investigate and disrupt networks, entities, and organizations that foment political violence so that law enforcement can intervene in criminal conspiracies before they result in violent political acts.” It is not difficult to imagine Trump attempting to prosecute those protesting his immigration policy on the grounds that, say, their criticism of ICE amounts to “isolating and dehumanizing” rhetoric that “foments violence” and therefore his Justice Department can prosecute political speech and association as precrime or thought crime.
Since the assassination of the conservative activist Charlie Kirk, Trump flunkies have vowed to crack down on their political enemies—the rabid White House adviser Stephen Miller has called the whole Democratic Party a “domestic extremist organization.” In case you were wondering whether I’m being too alarmist about Trump’s recent memo, consider how Miller described California Governor Gavin Newsom’s criticism of “authoritarian” arrests of immigrants by masked ICE agents, with no due process: “This language incites violence and terrorism,” Miller wrote on X. If the White House doesn’t like your speech, it might label your words “violent” and order the FBI to criminally investigate.
Trump has called for the prosecution of Letitia James, the New York attorney general. He has told the Justice Department to investigate the foundation of George Soros, the wealthy financier and liberal donor, because of his financial support for left-wing causes. The Justice Department has also opened a criminal investigation into Lisa Cook, a Federal Reserve governor whom Trump wants to remove as part of his effort to erode the central bank’s independence.
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. But just because you investigate does not mean you can indict, and just because you indict does not mean you can convict. And part of the decidedly mixed legacy of the American Founders is a means for regular people to decide whether convictions are justified.
When Trump tries to indict his political enemies on pretextual grounds, grand jurors have the option of refusing to indict. 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.
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