Why Jack Smith Might Bring a Second Trump Indictment in D.C.

Posted in: Criminal Law

Friday morning, ABC News reported that Judge Aileen Cannon has been assigned, at least initially, to Thursday’s federal grand jury indictment in Miami of Donald Trump. Federal judges are typically assigned cases randomly.

Cannon is the federal judge—confirmed by the Republican Senate nine days after the 2020 election—who last fall issued a “deeply problematic,” pro-Trump ruling. It came in a suit filed by the former President in August 2022, two weeks after the FBI’s court-approved search of Mar-a-Lago. Trump’s suit made the legally unsupportable claim that he was entitled to have a special master review and parse the seized documents.

Bizarrely, Judge Cannon agreed. In December 2022, the conservative U.S. Court of Appeals for the Eleventh Circuit reversed the decision two months after she issued it. Still, it slowed prosecutors’ ability to access classified documents in the case, awarding Trump a delay that he sought, temporary though it proved to be.

Notably, even the litigious Trump did not appeal to the Supreme Court the appeals court’s unanimous decision that Judge Cannon had no authority to appoint a special master. The obvious inference from a baffling ruling was that Cannon was not an even-handed jurist but instead one who saw her mission as favoring her patron, perhaps with an eye on a future Supreme Court seat should Trump be re-elected President in 2024.

Now, the 37-count indictment of Trump, with an additional count against his aide, co-defendant Walt Nauta, includes charges of violating the Espionage Act and conspiring to obstruct a federal investigation. These are deeply serious crimes against the nation. There are also charges of false statements to the government.

As to what happens if Judge Cannon does not recuse herself but instead seeks to hold onto the assignment and remain as the trial judge, there are various possibilities.

Joyce Vance, the highly respected former U.S. Attorney for the Northern District of Alabama, tweeted Friday that if Judge Cannon attempts to keep the case, “it is extremely likely that the DOJ will challenge the assignment [in the Eleventh Circuit] and win.” Otherwise, a pro-Trump partisan presiding over the trial could easily be death-by-a-thousand-cuts for prosecutors. Trial judges make dozens and dozens of unappealable rulings that, cumulatively, can be outcome-determinative.

Special Counsel Jack Smith undoubtedly foresaw the possibility of Judge Cannon being randomly assigned the case. Yet he decided to indict the case in Florida, and for reasons that are understandable, if debatable.

The Sixth Amendment entitles criminal defendants to a trial “by an impartial jury of the state and district wherein the crime shall have been committed.” The gist of the reported charges of violating the Espionage Act and of conspiring to obstruct the grand jury investigation occurred in Florida, even though there may well have been connections to Washington, D.C. Continuing offenses—those begun in one district and continued in another—may be tried in either.

Indicting the Espionage Act and obstruction crimes in D.C. would have carried a significant risk. The Supreme Court is currently considering a case where the question is whether the government can even retry a case if, following a conviction, an appeals court decides the government chose the wrong district.

Aware of that possibility, Smith may well have thought the risk too great to indict the obstruction and Espionage Act case in Washington, with so much of the misconduct having taken place in Florida. He may also have wanted to avoid at all costs a public perception that he was “forum shopping,” which Justice Department norms disfavor. These are all legitimate considerations.

Still, he may have a back-up plan in mind. There are two potential crimes that appear to have been clearly committed by Trump in Washington, making it virtually risk-free to indict there. One is the crime of unlawfully removing official documents from a government office.

The other is conspiracy to defraud the United States. It may be brought when two or more individuals agree to deprive the government of its lawful functions, and act in furtherance of their scheme. Moving from the White House to Mar-a-Lago government documents that belong in the custody of the National Archives or of intelligence agencies would qualify.

Importantly, the government may try related crimes against the same defendant in two different venues if they began in those different districts. That happened in Special Counsel Robert S. Mueller’s two successful prosecutions of Paul Manafort, Trump’s 2016 campaign manager.

So Jack Smith may still file a D.C. indictment because the Florida indictment does not charge the two crimes mentioned above that started in D.C. To be frank, this former prosecutor is pulling for him to do so.

If he doesn’t and the case remains permanently with a judge like Aileen Cannon, it would likely be to avoid even the slightest perception of “piling on” the defendant. In that case, all who believe in impartial justice can hope that the result is not a lopsided trial before a judge and jury leaning unfairly in the defendant’s direction.

Smith has what appears to be among the strongest cases ever brought against a public official. If the case remains with Judge Cannon for trial, sometime in 2024, we may well find out whether it is strong enough to withstand some significant headwinds.

Posted in: Criminal Law, Politics

Tags: Donald Trump

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