What sorts of arguments does Trump have to work with? On the one hand, many of his own advisers were telling him that he lost the election, but there were ostensibly reputable lawyers — Rudy Giuliani, Jeffrey Clark at the Justice Department, the law professor John Eastman — who not only agreed with him but were apparently egging him on. Yes, Trump lost the election, but Democratic politicians have publicly contested losses in the past as well, and exercising your right to free speech, even if you are a politician, is not a crime. For that matter, the use of “alternate” presidential electors, which is a crucial element of the indictment, may seem bizarre or anti-democratic, but it has been done before — and without anyone facing criminal charges after the fact. (Of course, none of that ever led to a violent assault on the Capitol, either.)
After reviewing the initial feedback on these and other potential defense arguments, presentations to subsequent focus groups would become more structured and elaborate, essentially offering summary variations on the prosecution’s expected case and the defense’s response. Over time, Ellis said, “you start to get a sense of where they are finding the holes in the prosecution story. And then you build on that and you build your case a bit more and you test that again.”
All of this might culminate in one or more mock trials in front of new groups of paid participants. “Instead of bringing them in for six or seven hours,” Ellis explained, “you’re bringing them in for one day, two days, three days” to react to “abbreviated versions of the case.”
This can be done many different ways depending on time and resource constraints, but one fairly simple variation — one that I have participated in as a practicing lawyer — is to have a lawyer from the defense team make an extended presentation to the group as if he were a prosecutor representing the government in a closing argument, complete with some exhibits and summaries of hypothetical witness testimony. After that, a lawyer from the team gives a defense presentation, again as if in a closing argument, homing in on arguments and themes that have ideally been developed over the prior rounds of research. As in an actual trial, the lawyer role-playing for the government might also get a rebuttal presentation.
“You get feedback from the jurors through questionnaires at various points throughout those one, two or three days,” Ellis explained. “And then after all of that, you split them up into their smaller groups and they go into their deliberations.”
This part of the process can be as fascinating as it is dispiriting for litigators, who quickly learn, if they did not know already, that jurors can latch on to the smallest things — a stray piece of evidence, a narrow and meaningless factual issue, a lawyer who they thought was rude or condescending.
These kinds of sessions often take place in consumer research facilities with two-way mirrors so that jurors can be isolated while members of the team watch in real time, but according to Ellis, these offices are in short supply in the Washington area. Another way to do it is to rent out a set of conference rooms in a hotel with a camera in the mock jury room that provides a live feed for spectators to watch the deliberations in another room.