Special counsel avoided one risk but took another by taking Trump case to Miami

Classified documents found at Donald Trump's Florida estate, Mar-a-Lago, are at the heart of the case against him.  (Josh Ritchie/The New York Times)

Classified documents found at Donald Trump’s Florida estate, Mar-a-Lago, are at the heart of the case against him. (Josh Ritchie/The New York Times)

WASHINGTON — The decision to indict former President Donald Trump in Miami, rather than Washington, eliminated the risk of a potentially thorny battle over where the charges should have been filed, but created a risk entirely different: that the case ends in front of a Trump-friendly judge, Aileen Cannon.

Indeed, the unveiling of the indictment on Friday showed that Cannon, who last fall issued a series of unusually favorable rulings for Trump in a lawsuit he filed at an earlier stage of the investigation, was given the case.

For months, prosecutors used a grand jury in the nation’s capital to interview witnesses and hear evidence before abruptly filing a still-sealed indictment in the Southern District of Florida that apparently includes at least one violation of the espionage law, obstruction and misrepresentation.

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Because Trump held the documents at Mar-a-Lago, his private club and residence in Florida, it was not clear that Washington would be the appropriate place to charge crimes, including unauthorized withholding of national security documents and obstruction.

In federal law, “place” refers to the appropriate place to hold a trial: prosecutors cannot choose any federal courthouse in the country, but must instead indict an accused in a district that has sufficient connection to the events that occurred. gave rise to the case. .

There was a connection with Washington. The National Archives and Records Administration, the legal custodian of the White House records after a president departs, is based there, as is the grand jury the Justice Department used to secure a 2022 subpoena compelling Trump to return all documents marked as classified in his possession.

And there would have been advantages for prosecutors in taking a case to Washington. On the one hand, this is where the team working on the investigation lives and works. On the other hand, it would have kept the case away from Cannon.

Bringing the case to Washington would have given Trump’s defense team an argument for the charges to be dismissed for being in an inappropriate location. Dennis Fitzpatrick, a former prosecutor who handled national security cases in Virginia, noted that Trump’s own actions under investigation appear to have occurred in Florida rather than Washington.

Not only were the documents improperly stored at Mar-a-Lago, but investigators are also trying to determine whether Trump sought to have his estate files moved or concealed after the Justice Department issued a subpoena. for their return.

Known charges did not specify where the misrepresentations are believed to have taken place, but if it was Florida, that would also be the appropriate place to charge them, former prosecutors said.

“When a prosecutor thinks they have a strong case, the goal becomes to protect the legal case by taking legal issues off the table,” Fitzpatrick said. “The venue in DC would have been a legal fight.”

The decision to indict Trump in Florida also means prosecutors could lose the advantage of putting a case before a potentially more liberal Washington jury. (Trump got 4% of the vote in the District of Columbia in the 2016 presidential election and 5% in 2020.)

Juries in Washington quickly convicted rioters encouraged by Trump in the January 6, 2021 attack on the Capitol. Although there have been doubts about whether prosecutors would win complex cases charging members of far-right groups the Oath Keepers and Proud Boys with seditious conspiracy, a law rarely tested, Washington juries have not acquitted no accused on January 6.

In Florida, which is more conservative, the panel of jurors could be very different. To convict Trump of a crime, the 12-member panel must be unanimous.

Brandon Van Grack, a former federal prosecutor who has also worked on complex cases involving national security and classified documents, wrote in a legal publication last year that there were many reasons to take the case to Washington. , including the number of judges there who are more familiar with handling cases involving classified information and espionage law, and a jury pool in Washington who “seems to be less deferential to” Trump.

But in an interview before the Cannon assignment became public, Van Grack said Jack Smith, the special counsel, must have believed there was real legal risk in taking a case to Washington and that he would be safer to take the case to Florida.

“There is a constitutional right to be charged where the crime was committed, and Jack Smith dispassionately reviewed the facts and determined that the location was appropriate in Florida,” Van Grack said.

circa 2023 The New York Times Society

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