I am willing to bet that if the case goes to trial the court will rule that the defense cannot talk about what jury nullification at all.
My bet that even if the defense was allowed to mention jury nullification anytime it wanted juries would still routine convict people. The government is afraid of nullification not because it will be misused, but because it takes away their power.
The charge is jury tampering for the "conduct" or the "behavior" of discussing -- jury nullification.
How could the case EVER go to trial without the EVIDENCE thus consisting of that VERY speech? The CENTERPIECE of the CASE itself would be a discussion of how talking about "jury nullification" could constitute "jury tampering." How could the jury decide the case unless they heard WHAT IT WAS that the defendant said that allegedly constitutes "jury tampering?"
No.
If the case went to trial before a jury, the jury would hear a SHIT LOAD about jury nullification. No way around it.
Not sure, but I can guarantee that the prosecution will be trying to keep the defense from using it, and the judge will do every bit of legal gymnastics he can to help them do so.
It would be like trying one of the old time "pornography" cases without having the jury see the motion picture in question or the glossy magazine photographs in question. Actually, even that is do-able. For in THOSE cases you COULD (theoretically at least) have a witness describe the images verbally.
But in the "jury tampering" case, how could anybody "describe" the allegedly criminal words of the defendant without thereby (in the very same breath) describing the whole notion of "jury nullification." Those ARE the words in question. They are the gravamen of the criminal accusation.
If the jury can't read what the defendant wrote (jury nullification pamphlet) or hear WHAT he said (quotes about jury nullification) what possible basis could they have to decide one way or the other if he's guilty of tampering with a jury?
I maintain it is facially impossible.
And interestingly enough, it would LEAD to other significant dilemmas for the prosecution. One such possibility is that the prosecutor would find himself (or herself) having to decide if he HAD to ask the judge for legal instructions for the benefit of the jury's deliberations ALL ABOUT how the law forbids "jury nullification." That's right. It is possible that a prosecutor MIGHT feel compelled to ask for some legal charge on the very topic he claims is criminal when spoken by the defendant.