Could Jack Smith Maneuver Around Judge Cannon and Bring a Second Documents Case Against Trump at D.C.?

The decision by Judge Aileen Cannon to cancel an August 25 hearing that was intended to discuss a protective order in the Mar-a-Lago classified documents probe could heighten Special Counsel Jack Smith’s desire for a fresh forum.The judge noted that the proceeding will take place, under seal, to “discuss sensitive, security-related issues concerning classified discovery.” This despite the submissions in the case being filed publicly, available on the case’s docket. It is a setback for the government, which has requested the order. Judge Cannon has displayed a solicitude for President Trump’s point of view from the case’s early days, when she granted his request for a special master and froze the government’s review of evidence. Both of those decisions were overturned by circuit riders, who also issued stinging rebukes with respect to her handling of the case. The thorn now in Mr. Smith’s side is a request from Judge Cannon for both sides to brief her on the “legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.” The allusion is to a grand jury, convened by the special counsel, that has been meeting at the District of Columbia. While the case’s main stage is Judge Cannon’s courtroom at Fort Pierce, Florida, that D.C. grand jury appears to have done much of the case’s preparatory work, even as its main action appears to have transpired at Mar-a-Lago and Bedminster, New Jersey.It also could provide an escape hatch for Mr. Smith, preserving the possibility that he could open a second federal case in the nation’s capital. He is already working there to convict Mr. Trump for efforts to overturn the 2020 election. The grand jury in the documents case has not yet handed up any indictments, unlike its south Florida sister. That does not mean, though, that it has uttered its last, or first, word.Mr. Smith has already demonstrated a proclivity for a stepwise approach to indicting. The documents case has featured a superseding indictment that added a new defendant, Carlos de Oliveira, and new charges for both Mr. Trump and his valet, Waltine Nauta. In the January 6 case, his indictment alludes to six as-of-yet-unindicted co-conspirators, setting up the possibility of downstream charges for that group, all of them attorneys.Could something similar — a second installment, in a different venue, the District of Columbia — be in the works with respect to the case currently solely before Judge Cannon? Grand juries, which date to the days after the Norman invasion of England by William Conqueror and are a right protected in the Fifth Amendment, are convened in the jurisdiction where the underlying crime can plausibly be alleged to have occurred.Mr. Smith’s indictment lists the “Date of Offense” for every one of the Espionage Act charges he levels at Mr. Trump as “January 20, 2021,” indicating that the prosecutor’s theory of criminality covers not only the storage of documents at Mar-a-Lago, but also their removal from the White House.If Mr. Smith intends to pursue the argument that there was something unlawful about not only the documents’ tenure at Mar-a-Lago but also their departure from the White House, keeping the D.C. grand jury in session could allow for charges on that head. It could also sweep in a new, District of Columbia-based slate of defendants.The benefits of a second prosecution set in D.C. could be compelling to Mr. Smith. The jury pool would be drawn from a Democratic stronghold rather than a conservative redoubt. He could look to Judge Tanya Chutkan, of the District of Columbia district court, who is presiding over the January 6 case, as an example of a more amenable jurist.Then again, Mr. Smith could figure that prosecuting two cases against the 45th president will be difficult enough without adding a third. Or he could conclude that his Mar-a-Lago effort is sturdy enough to withstand Judge Cannon. One of Mr. Trump’s attorneys general, William Barr, termed it a “very simple case and that should be tried.”

Could Jack Smith Maneuver Around Judge Cannon and Bring a Second Documents Case Against Trump at D.C.?

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