Monday’s wrongheaded ruling from Florida federal judge Aileen Cannon to appoint a special master to determine whether there are privileged documents in the materials seized from Mar-a-Lago may or may not withstand any Justice Department appeal. For now, however, because the judge suspended the Department’s ability to use the seized materials in its criminal investigation, the ruling will needlessly slow down parts of it. That, of course, was former President Donald Trump’s intent.
Nonetheless, it almost certainly is a mere speed bump on the road to accountability. The issues of whether there are any privileged materials will be resolved. Ultimately, there will be volumes of relevant materials from the search useful to federal prosecutors.
And in the meantime, they already have a small mountain of previously obtained evidence against Trump, and the investigation will continue, focusing on what was already returned. As for sobering predictions about the ultimate result, in case you missed it, bipartisanship has sprung up among political and legal commentators on the country’s most sobering prediction. Former President Donald Trump “will soon be indicted,” according even to right-leaning columnists in the conservative National Review and Washington Times.
That growing belief – supported by a mountain of evidence — makes it safe to consider the next order of questions: When, where, and what crimes should be charged?
The first answer is the easiest: Even with the delay wrought by Judge Cannon, the evidence to indict Trump should be ready soon after the midterms. Many legal analysts believe the window for any pre-election indictment is now closed because of the Justice Department’s policy regarding election year “sensitivities.” Although some people appear to disagree, we believe that the criminal investigation of the former president should not slow down during any such window.
Indeed, any delay in an actual indictment beyond the midterms adds considerably to an already-existing extremely grave risk: If Trump is convicted and a MAGA-Republican president is elected in 2024, the new Justice Department would likely scotch any pending defense of that conviction on appeal, or the new president would pardon Trump. In either case, it would short circuit accountability, as Trump might well never see a final verdict or the inside of a jail cell, even if a jury of his peers and sentencing judge decide he merits it.
Location (a.k.a. Venue) and Category of Offences
As to where to indict, put simply, what started in Washington should stay in Washington. To lay and even some legal observers, it may seem counterintuitive to try a case outside of Florida, where the court-approved search of Mar-a-Lago transpired and where Trump had improperly stashed documents containing some of the country’s most sensitive national security secrets. However, while the case could be indicted in Florida, that option is a non-starter for any responsible federal prosecutor, for reasons we discuss in a moment.
The Sixth Amendment requires that a criminal defendant be tried “by an impartial jury of the state and district wherein the crime shall have been committed.” Under the statute implementing that requirement, a federal criminal case may properly be tried in any jurisdiction where any part of the offense occurred, or where a continuing offense began, even if completed elsewhere.
This is where answers to the second and third questions – where and what crimes should be charged – intersect. The apparent willful removal of official government records from an office of the United States began in Washington, DC. The same is true of a separate chargeable offense of theft of government records. Indeed, the Department references “removed” and “removal” of government documents four separate times in its recent request to the D.C. district court to unseal the May 2022 subpoena issued by the grand jury sitting in Washington. Those two crimes carry maximum three-year and 10-year sentences respectively.
Then there is the Espionage Act, which is also punishable by 10 years in prison and which criminalizes the willful failure to return defense-related information to an appropriate government official. Beginning even before January 20, 2021, the Acting Archivist of the United States sent communications from Washington asking for those records to be returned, and Trump’s White House Counsel Pat Cipollone agreed that Trump needed to return them before his term ended. After Trump absconded with the documents, the grand jury subpoena demanded that all of them be returned to the courthouse located in downtown Washington DC. Succinctly stated, Trump’s violation of that statute has its roots in the nation’s capital.
We note that whether the former president could have properly had access to the documents, or even whether he was at one time authorized to possess them, is immaterial to culpability once a proper official asked for their return. That’s no matter of subjective interpretation. It’s the black-letter law of the statute.
All three of these crimes are relatively straightforward to prove. Garland and his team might decide that charging them alone suffices, without adding to an indictment the fourth offense, obstructing the pending federal criminal investigation into the improperly taking and retaining of the purloined documents.
Yet for multiple reasons, it is particularly enticing for prosecutors to charge this crime. Obstruction offends them and undermines the entire system of accountability under the law. Indeed, the 20-year maximum sentence for the offense — double the penalty for violating the Espionage Act — reflects the outrage that the criminal code manifests in condemning attacks on the administration of justice.
Further, as the country learned from Richard Nixon’s failed Watergate conspiracy, proof of a cover-up is extremely useful in establishing criminal intent to do wrong with respect to the underlying crime.
In this case, evidence of the obstructive conduct of Trump and his lawyers helps greatly to show that he took and retained the government records knowingly and willfully. Start with the fact that he and his attorneys stonewalled the government for more than a year, refusing to return the 13 boxes of classified documents that the FBI’s August 8 search recovered.
Add to that Trump’s lawyers telling the FBI when it visited Mar-a-Lago on June 3 that the lawyers had received “authoriz[ation]” from Trump to take the government personnel, upon the government’s request, to the storage room – but then “explicitly prohibited” the FBI from looking inside boxes in the room for documents with classification markings.
Then we have his lawyer’s false representation in a June 3, 2022 sworn statement that all the materials marked as classified and demanded by the government had been returned, and Trump’s attorney saying he had been advised all White House records were located only in the storage room.
It is difficult to imagine that those lawyers acted on their own without consulting with their client.
Trump has been a master at pulling his legal counsel into his dark orbit of misconduct. It remains to be seen whether the continuing investigation develops evidence that these lawyers were knowingly part of his scheme to hold onto the records via subterfuge. If they were, charging them with conspiring to impede the investigation through concealment would be in order, with the possible aim of obtaining their cooperation.
To be sure, some within DOJ will note that indicting Trump for obstruction could add to the low but non-zero risk that a case indicted in DC would be transferred to Florida, a move that could jeopardize the prospects for conviction. Trump’s lawyers will at the very least file a motion to move the case there and to join all the offenses into a single trial in Florida.
They may do that in part because of the added burden it would place on the government. But their main motivation would be their hope that, in Trump’s backyard, where some people seem to think he “can do no wrong,” at least one or two members of Trump’s base would find their way into the jury box. There, they might ignore the law and nullify other jurors’ votes to convict, however powerful the evidence of guilt and the interests of justice.
Judge Cannon’s ruling yesterday suggests a similar forum-shopping temptation from a judicial angle. That completely unprecedented and damaging decision suggests that the United States may not be able to receive a fair adjudication of Trump’s innocence or guilt in a district that he has shaped. Judge Cannon was hardly a suitable judge to act on this contentious matter, since she owes her recent appointment to President Trump, who made her a judge a week after he lost the 2020 election, which he and his supporters continue to contest.
Needless to say, in moving to change venue, Trump’s legal team will pretend that they are not shopping for a favorable judge and jury. They will predictably argue that the alleged obstruction described above took place at Mar-a-Lago, so that’s where the entire case should be tried.
Although trial judges have wide discretion to grant or deny motions of this kind, the reasons for any judge to reject such an attempt in this case are conspicuous and compelling.
First, the statute expressly subjects to conviction anyone who “knowingly . . . . conceals [or] covers up . . . any record or document with the intent to impede . . . the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.” The departments and agencies of the United States that were administering and investigating the missing records are all located in Washington, which is where the investigation began and where the bulk of it has taken place.
It is also where the grand jury whose inquiry was obstructed sits. In Anglo-American jurisprudence, crimes are properly viewed as having been committed where the criminal harm was experienced.
Second, false statements on behalf of Trump were almost certainly made by email, phone, or mail sent to and from government officials in DC, whether to National Archivists, FBI agents, or DOJ lawyers. This includes, for example, the May 10 letter from the National Archives to Trump’s attorney Evan Corcoran, and multiple subsequent letters between the Justice Department and Corcoran. Those communications would connect the crime to DC and amply justify trial there.
Third, the obstruction offense is intimately connected to the other crimes with a significant link to DC.
Fourth, upon any conviction – or should pre-trial issues arise that merit an interlocutory appeal — the DC Circuit is the preeminent federal court of appeals with experience and expertise in the kinds of national security issues involved here.
That special experience includes, for example, appeals involving the Classified Information Procedures Act, which would likely come into play in Trump’s case. The Act seeks to balance the government’s interest in keeping sensitive national security documents secret versus what is sometimes called the “graymail defense.” Defendants in national security cases typically attempt to pressure the government to drop the case via a motion that jurors need to see the classified documents to judge their content.
Fifth, any argument by Trump’s lawyers that DOJ’s prosecutors are urging that the case be tried in DC in the improper hope of getting a jury stacked against Trump would be unsound. It was from Washington that the documents were wrongly taken and where they belong. In addition, statistics demonstrate that juries in DC often give defendants more than just the benefit of the doubt. The upshot is that DC is the venue where both the defendant and the people of the United States have the best prospect of a fair adjudication of innocence or guilt.
As matter of common sense, amply authorized by federal law, if a former president is to be put on trial, the trial belongs in the nation’s capital, not in a beachfront golf community.
One other factor might turn out to add a final reason for trying the case in DC: We may discover that Mar-a-Lago was not the only place where Trump stored improperly taken records after he left the White House. The Justice Department’s most recently released filing strongly suggests that very possibility. If that turns out to be the case, Washington becomes even more decisively the central hub where any trial must surely be conducted.
To be sure, even the small residual risk of having a trial on an obstruction count transferred to Florida could be eliminated altogether by simply not including obstruction as a formal count and alleging the obstructive conduct within the other charges. That approach would allow prosecutors to introduce at trial the evidence of Trump’s and his team’s obstructive acts to help prove the requisite criminal intent: willful removal and retention of government records; the refusal to return defense related information; and the knowing conversion of government documents (and perhaps also disobeying a grand jury subpoena).
Weighing against this tactic is the danger that failure to charge obstruction while including large swaths of evidence proving obstruction could confuse some jurors. Doing so might also mislead the public, whose impressions cannot rightly be ignored. Any trial of the former president will be one of historic magnitude; history should not be left confused about whether the Justice Department believed that the cover-up was as bad as, if not worse than, the crime.
All of that said, in the end an experienced prosecutor and former judge like Garland, supported by capable DOJ attorneys, is in the best position to make decisions about what charges to include in any indictment. Those officials know what we all learned from the Mueller investigation and two impeachment trials: Investigations and charges that did not result in convictions only emboldened Trump to try to overthrow an election.
The case for putting Trump on trial soon after the midterms and in the nation’s capital for his crimes against the nation rests on the importance of ensuring that no one stands above the law and that accountability will not elude our country yet again.