U.S. Supreme Court

Did pending Supreme Court case affect special counsel’s decision to move Trump grand jury to Florida?

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Classified documents seized from Mar-a-Lago

A photo of documents from former President Donald Trump’s Mar-a-Lago home in Palm Beach, Florida, submitted as evidence by the Department of Justice in federal court in Florida. Image from the Department of Justice.

Updated: A “little-noted” case pending before the U.S. Supreme Court may have changed the special counsel’s calculus on where to bring charges against former President Donald Trump, according to a blog post by Just Security.

Special counsel Jack Smith has obtained an indictment against Trump over his handling of classified documents in Miami, according to the New York Times. Previously, a grand jury in Washington, D.C., heard evidence in the case, according to a prior story by the New York Times.

The grand jury location may have been a concern because of the Supreme Court case, which asks whether a defendant can be retried after the government obtains a conviction in the wrong venue.

The Constitution requires each criminal charge to be brought in the location where the alleged conduct occurred, according to Just Security. Often, the conduct takes place in multiple jurisdictions, “leaving the government free to choose from a variety of locations after considering a variety of factors,” the blog says.

But what if Smith was to charge Trump in Washington, D.C., and obtain a conviction—but the jury or an appellate court finds that all the charged conduct happened outside Washington, D.C.? A pending Supreme Court case, Smith v. United States, could bar a retrial in Florida, according to Just Security.

The defendant in the Smith case is software engineer and fisherman Timothy J. Smith, who was accused of hacking into the website of a Pensacola, Florida-based company and stealing information on the locations of artificial fishing reefs. Smith was tried in Pensacola, Florida, where he was acquitted of a federal hacking charge but convicted for theft of trade secrets and extortion.

Smith had claimed that the venue in Pensacola, Florida, was improper because he lived in the Southern District of Alabama, and the company’s servers were in the Middle District of Florida. The 11th U.S. Circuit Court of Appeals at Atlanta vacated the trade secrets count because it was tried in the wrong venue. The 11th Circuit said Smith could be retried in the proper venue, but Smith contests that.

Coverage of Supreme Court oral arguments indicated that the justices appeared to side with the government, “but there were also several difficult and skeptical questions asked of the government,” Just Security says. “What’s more, even if the court rules that a mistaken venue decision does not always prevent a second bite at the apple, the justices will presumably want to inject some limiting principle.”

The upshot of the pending case, Just Security says, is that “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.”

Washington, D.C., could have been a better jurisdiction for prosecutors to try the case, partly because the jury pool in Washington, D.C., is likely to include more Democrats and partly because the assigned judge in Florida could be U.S. District Judge Aileen M. Cannon, according to the New York Times.

Cannon is a Trump appointee who appointed a special master to review documents seized from Trump. She was “rebuked and shut down” by a federal appeals court that overturned her decision, according to the New York Times.

The New York Times and several other publications are reporting that Cannon has indeed been initially assigned to the case, based on information from anonymous sources.

See also:

ABAJournal.com: “CNN obtains transcript of tape that could be key to reported espionage charge against Trump”

ABAJournal.com: “Will Trump be indicted in Mar-a-Lago documents case? His lawyers see possibility, object to special master request”

ABAJournal.com: “Who filed phony document in Trump Mar-a-Lago search case?”

ABAJournal.com: “Meet Raymond Dearie, the judge picked to oversee Mar-a-Lago documents review”

ABAJournal.com: “Trump requests special master for review of documents seized by FBI”

ABAJournal.com: “Could Trump be banned from office if he’s convicted of taking government documents?”

ABAJournal.com: “DOJ files motion to unseal warrant, property receipt relating to search of Trump’s home”

ABAJournal.com: “Judge who signed Trump search warrant is targeted; critics seek ‘judgment of God’”

ABAJournal.com: “Trump search-warrant affidavit, released on judge’s orders, cites sensitive documents, possible obstruction”

ABAJournal.com: “Trump doesn’t have to detail claims about planted documents to special master, judge says”

Updated June 9 at 2:24 p.m. to report that an indictment has been obtained.

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