It Appears Mar-a-Lago Case Will Be Brought in Florida

Last night, I had a post relating that special counsel Jack Smith had used two grand juries in the Mar-a-Lago probe of former president Donald Trump’s allegedly illegal retention of national-security documents and effort to obstruct the government’s investigation. For the first several months of the investigation, witnesses and evidence were presented in Washington, D.C. But in recent weeks, witnesses and evidence have been presented to a grand jury sitting in Miami — federally speaking, the Southern District of Florida.

I concluded that the reason for the Miami grand jury was convenience — which, as I observed, is a sure sign that the case should be in Florida, not Washington. It now increasingly appears that Smith will bring the case, or at least much of it, in Miami. Presumably, the Justice Department realizes that Trump would have a very convincing motion to change venue if the case were indicted in Washington, and could even try to argue that the case so obviously should have been in Florida that the government acted in bad faith by conducting the grand-jury investigation in D.C.

As I explained in the post, while the case should be in Florida, where the key locations and all of the important action took place, the Biden Justice Department would rather bring the case in Washington, where the jury pool is hostile to Trump. Florida, of course, is a red state, and Trump’s home state, where he is apt to be more popular with the jury pool than Beltway-based prosecutors. To be fair to Smith, it was the Justice Department that chose to use the D.C. grand jury, months before Smith was appointed.

Given the amount of work that had been done in Washington, and the clear preference of the government to litigate in Washington, I assumed that Smith had more recently started using a Florida grand jury strictly for the convenience of witnesses. It would be a hassle to force what may be dozens of Floridians to travel to and get accommodations in Washington just to provide brief testimony to the grand jury. The government, I figured, could easily take the testimony in Florida and then introduce it to a grand jury in Washington. Federal grand-jury practice liberally permits the presentation of hearsay evidence. It would thus be a simple matter to use a summary witness (e.g., an FBI agent) to inform a D.C. grand jury about evidence gathered in Florida — and the summary could include transcripts of the Florida witnesses’ testimony, enabling the D.C. grand jury to review everything the witnesses had said.

Of course, this would not be a quandary if the government would just proceed in the place where the alleged crimes happened, which is what the Constitution calls for. The main factual nexus of Washington to the case has nothing to do with Trump (the target of the investigation); it is that the prosecutors, who could have conducted their investigation anywhere in the country (or at least anyplace in the country where part of the alleged crimes occurred), decided to set up shop in Washington. Ergo, to the extent that Trump’s alleged obstruction of the investigation is central to the case Smith contemplates bringing, the fact that the grand jury is in Washington makes Washington a place where part of the crime took place — even though Trump did not commit the allegedly obstructive acts there.

The Biden Justice Department also knew that, by the local rule of the federal district court in Washington, any legal disputes attendant to the grand-jury investigation would be litigated before (now-former) chief district judge Beryl Howell — put on the bench by President Obama after serving for years as a top aide to the now retired, sharp-elbowed partisan Pat Leahy (for a long time the senior Democrat on the Senate Judiciary Committee). Judge Howell played this same role during special counsel Robert Mueller’s investigation of alleged Trump–Russia collusion, reliably ruling in Mueller’s favor.

As it turned out in the Mar-a-Lago grand-jury litigation, Howell delivered Smith’s signal victory: ruling that Trump’s communications with his lawyer, Evan Corcoran, were not protected by the attorney-client privilege of confidentiality because, she found, Trump was using Corcoran to deceive investigators, triggering the “crime-fraud exception” to the privilege. Corcoran was the lawyer Trump put in charge of dealing with the government on the grand-jury subpoena issued in spring 2022, requiring him to surrender documents in his possession that bore classification markings. Howell forced Corcoran not only to testify but to provide Smith with the extensive notes he had made of his conversations with Trump. If Smith indicts Trump, as seems to be the case, Corcoran now stands to be the central witness in the prosecution’s case.

Much as the Biden Justice Department would prefer to try Trump in Washington, the prosecutors know that Trump will move to change venue to Florida. Such defense motions are common in cases where the alleged crimes take place in multiple districts. The government nearly always prevails in these disputes, but that is because the Justice Department is ordinarily careful to bring the case in a district that it can plausibly argue is the case’s center of gravity — or, at least, is as central as any other district where the case could properly have been brought.

In the Mar-a-Lago matter, by contrast, virtually everything of importance happened in Florida. The (soon-to-be) defendant is a Florida resident, and the locus of his alleged crimes is the Sunshine State. In fact, as I also mentioned in last night’s column, to the extent Smith may contemplate charging offenses that involve moving national-defense intelligence from one unauthorized Florida location to another, venue would only be proper in Florida. In a venue-change motion, Trump’s team would contend that, were the case brought in Washington, Trump would, as a practical matter, be forced to move there for the trial’s duration, as well as to travel there for other required court appearances. And as noted above, proceedings in Washington would be tremendously burdensome for the many witnesses who reside in Florida.

Bottom line: As a highly experienced prosecutor, Smith surely knows this could be the rare case in which the defense would prevail on a venue-change motion. I believe the special counsel has thus assessed that it would hurt his case if he appeared to be afraid to try it in Florida — or, worse, if it looked like he was trying to force a trial in Washington because he believes it is rigged in his favor. If his evidence is strong, as it seems to be, he should be willing to bring the case where it should be brought.

That appears to be what he has decided to do, the Washington Post reports. The Post is correct that bringing the bulk of the case in Florida would not preclude Smith from filing separate charges in Washington — where venue there would be proper. If, for example, a person lied during a grand–jury appearance in Washington, that would be the proper place to indict. Because trials are financially and emotionally burdensome, it often happens in such situations that a defendant waives any venue objections so that all the charges can be brought in one place, at one time.

All signs are that an indictment is imminent, most likely in Florida. Nevertheless, it could take some time if Smith is wholesale re-presenting in Florida the testimony and other evidence that were presented over many months to the grand jury in Washington. And obviously, if the prosecutor contemplates charges in two different districts separated by nearly a thousand miles, that is going to require some major coordination, particularly given the unique security concerns regarding a former U.S. president who is also a current, leading candidate for his party’s presidential nomination.