The late-stage presentation of evidence to a Florida grand jury is the latest sign that former President Trump may face trial in Miami as prosecutors work to insulate the Mar-a-Lago case from legal challenges stemming from the location of the proceedings.
Special counsel Jack Smith has for months been calling witnesses before a Washington, D.C., grand jury on the matter, but a recent flurry of activity in the case — just days after Trump’s attorneys met with Justice Department prosecutors in D.C. — has instead been in Florida.
This week, a handful of witnesses have been appearing in Florida, including Trump aide Taylor Budowich, who tweeted Wednesday that he was compelled to answer questions in the probe.
The move is a sign Smith is weighing filing charges there in addition to or instead of D.C., as defendants have a right to face trial where the alleged crime took place.
Jack Smith, the Department of Justice’s chief of the Public Integrity Section, was the prosecutor named as special counsel to oversee investigations related to former President Donald Trump, has a long career confronting public corruption and war crimes. (AP Photo/Charles Dharapak, File)
Determining the venue isn’t a low-stakes decision. A defendant can move to dismiss charges they believe haven’t been brought in the correct location.
“It signals that charges are likely to be in Florida, which also signals that I think the special counsel likely did not believe that he had venue for one or more of the charges in D.C.,” Brandon Van Grack, a former top national security lawyer with the Department of Justice (DOJ) who is now in private practice, told The Hill.
But bringing the charges in Florida raises other considerations.
“For viewers who might be thinking, ‘Who cares as long as there are charges? Whether it’s D.C. or Florida, why does the venue matter?’ It really could make a huge difference. The jury pool is different. The judges are different,” Andrew Weissmann, who was one of the lead prosecutors on the Mueller investigation, said during an appearance on MSNBC.
“Also, D.C. is a location where the court is very used to dealing with classified information. There’s an expertise there. So in terms of speed, getting this case to trial, the venue matters.”
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Trump’s legal team has been informed he is a target in the Mar-a-Lago probe, a move that usually precedes the filing of charges.
Trump could face a multitude of charges in connection with the mishandling of records at Mar-a-Lago, including Espionage Act charges for willful retention of documents, as well as obstruction of justice charges stemming from the effort to keep them.
But while the effort to recover the documents stemmed from Washington — first from the National Archives and then from the DOJ — the timeline of the movement of the documents is at play in the case.
Trump’s legal team argued in a Supreme Court brief that he was still president while the boxes containing the classified documents were moved to Florida.
If true, his team may be able to successfully argue to a judge that the conduct in question was initiated in the Sunshine State.
Though the DOJ could try to make the case that Trump had involvement in the packing of the boxes during the D.C.-based transition, Van Grack notes that several circuits have determined that preparatory acts alone cannot be used to determine venue.
For obstruction of justice charges too, much of the activity appears to have occurred in Florida.
Prosecutors have zeroed in on a number of actions at Mar-a-Lago, from the failure to turn over all classified records following a subpoena last summer to video camera footage showing the movement of boxes in and out of a storage room.
A D.C. judge compelled testimony from Trump attorney Evan Corcoran after determining he may have been misled about how many documents remained at Mar-a-Lago. Corcoran returned 38 in response to the June 2022 subpoena, while the FBI found over 100 more when they searched the residence in August.
Attorney Mathew Evan Corcoran representing former Trump advisor Steve Bannon leaves the E. Barrett Prettyman United States District Court House in Washington, D.C., on Friday, July 22, 2022. (Greg Nash)
Judges can pierce attorney-client privilege if they believe legal advice was given in furtherance of a crime, and Corcoran has since recused himself from the case.
Most recently, CNN reported that prosecutors have also been asking questions about the flooding of a room that housed servers of security footage after a Mar-a-Lago employee drained a pool.
Obstruction charges in this case require proving a defendant knowingly concealed records and that they knowingly sought to impede an investigation.
While subpoenas for the documents and video footage may have been issued in Washington, the D.C. circuit has held that the venue must be tied to where the unlawful conduct was committed.
On that front, prosecutors could be eyeing charges for more than just Trump.
DOJ officials have also been examining Walt Nauta, Trump’s valet who was spotted on security camera footage moving some of the boxes.
Timothy Parlatore, who until last month served as one of Trump’s attorneys in the matter and who has maintained the former president should not face charges in the probe, said there would be no basis for charging Nauta in D.C., and the same holds true for Trump.
“Ultimately, I haven’t seen anything in this case that would indicate that D.C. has jurisdiction. It’s something that when [top DOJ prosecutor] Jay Bratt opened the investigation, he started with a D.C. grand jury. I don’t think they had any basis to believe that there was jurisdiction in D.C. but that’s what he did. And that’s what Smith inherited,” Parlatore said.
“If they’re actually now getting down to where the rubber meets the road, they have to really consider, can they make out venue.”
Attorney Timothy Parlatore leaves the U.S. Federal District Court on December 22, 2022 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)
It’s not entirely an either/or decision for Smith.
Prosecutors could bring different charges in different jurisdictions, trying Trump in two different cases.
Some see a benefit to bringing certain charges in D.C., where judges more routinely deal with classified information and some consider the jury pool to be more favorable to the DOJ.
On the warrant to search Mar-a-Lago, prosecutors also noted they were investigating charges for concealment or removal of government records, a crime that requires showing a willful effort to keep the government from accessing its documents.
The charge could be one of the safest bets for bringing in D.C.
“The existence of a separate grand jury in Florida considering evidence in the Mar-a-Lago classified documents case strongly suggests that there may be *two* indictments due to venue issues, as there was in the [Paul] Manafort case,” Renato Mariotti, a former federal prosecutor, wrote on Twitter, referencing Trump’s former campaign manager.
“Certain potential crimes occurred *only* in Florida.”
But Van Grack said he doesn’t think that’s likely, given the DOJ’s own timeline considerations.
“It’s not that you can’t bring charges into different districts. But let’s also keep in mind, the special counsel, the Department of Justice has to try this case as quickly as possible to minimize the impact on the election. So the notion of bringing two different cases in two districts, I think would seem unlikely,” he said.
“You can do it. It delays things. It takes additional time. And I think it would be unlikely considering the time pressure that the Department of Justice is under to pursue that course.”
Weissmann wrote Thursday that the safest bet is to bring the case in Florida.
“All else being equal, the prudent prosecutor will be reluctant to choose a venue where, if the government gets the venue decision wrong, it cannot proceed to try the defendant in another district for her crimes,” he wrote.
“Thus, although Florida may be a less advantageous district for the government — given its jury pool and its judges, who are less steeped in handling classified document cases … Florida is legally a less risky venue at this juncture.”