In terms of criminal law, among several self-destructive statements former President Donald Trump made in CNN’s “Town Hall,” the competition is stiff for the title of most damaging to his legal defense. From the perspective of Special Counsel Jack Smith’s expected prosecution of Trump relating to the Mar-a-Lago documents case, however, to this constitutional scholar and former federal prosecutor, one statement stands out for a reason of criminal procedure rather than just substantive criminal law: Trump made an admission that helps secure Washington DC rather than Florida as the proper venue for the indictment and trial. Where this case is tried can be the whole ballgame.
When asked why he took government documents from the White House, Trump answered: “I was there and I took what I took . . . . I had every right to do it. I didn’t make a secret of it. You know, the boxes were stationed outside of the White House.”
With those fateful words, Trump admitted that he was involved in willfully removing the documents from the White House. It is a federal crime to “willfully and unlawfully … remove … any … document … in any public office … of the United States.” Indeed, the Justice Department has identified “improper removal,” or “unlawful” removal, as a key concern in court filings in the Mar-a-Lago litigation.
Before making that admission, Trump might have blamed the removal on his aides. Indeed, his lawyers had recently done just that. In a letter they sent to the Chair of the House Intelligence Committee last month, they claimed the removal of the documents marked as classified was a result of staff error and inadvertence.
But that no longer holds. Trump’s own statement directly implicates him in the deliberate removal of the documents at issue.
It also discards another potential defense. If the documents were taken to Trump’s “southern White House” at Mar-a-Lago months before Trump’s presidency ended and were simply not returned, Trump could argue they were never unlawfully “removed” from a government office; they just “stayed there.” Trump appears to have tossed that argument overboard too.
Suppose, however, that Trump was still president when the documents landed in Mar-a-Lago in the few hours remaining while that resort was still the “southern White House.” He might claim the documents simply remained in that “federal office” and were never “removed.”
Trump’s admission has undercut that line of argument as well. By affirming that he intentionally moved the official materials from the White House mere hours before his presidency terminated, he provided evidence of “constructive” removal. Trump knowingly and intentionally initiated the removal in DC, with the full intent to keep the documents once power passed and he no longer had any right to possess them.
But why is this admission so pivotal to the potential outcome of a trial? The answer is location, location, location.
The Sixth Amendment requires that trials occur in the federal “district wherein the crime shall have been committed.” Trump’s admission of his personal role in removing the documents while he was in Washington means that Special Counsel Smith is now on surer footing than ever in bringing the documents case in DC, rather than in Florida. Trump’s admission adds significantly to any other factors pointing to DC as the proper venue, such as the location of the National Archives from which Trump concealed the documents (listen to Mary McCord’s recent discussion with Andrew Weissmann). With this new and important admission, there goes the legal basis for Trump’s inevitable motion, if indicted, to move to his home turf the trial of an indictment count for unlawfully removing government documents .
That is a very big deal – for at least two reasons: the potential judges and the jurors.
First, in Florida, one judge who could be assigned the case is Aileen Cannon, the Trump appointee who, in a major favor to Trump and truly without any support in the law, granted his request to have a special master oversee the documents case. A conservative bench of the Court of Appeals for the Eleventh Circuit expeditiously and unanimously reversed that ruling. But there’s little reason to think that would deter her in future, especially as she showed an extraordinary effort to wrestle the case away from a federal magistrate judge who was already handling it.
Second, one could expect that in Florida, populated as it is with strong Trump supporters, one or two might find their way onto the jury and refuse, whatever the evidence, to join a unanimous verdict to convict him. Just think of the members of the CNN town hall audience in New Hampshire, and what some of them might do in the face of evidence beyond reasonable doubt.
Another point as to venue is easily overlooked: an indictment for conspiracy. One potential charge Smith could bring is conspiracy to defraud the United States of its property or lawful functions – functions like maintaining national security documents in secure locations. That charge, of course, depends on Smith’s proof of an agreement between Trump and another person to remove the documents.
Conspiracy charges carry a potential five-year sentence, two years longer than the maximum prison term for unlawful removal of government property.
In addition, charging conspiracy permits introducing an array of evidence that a prosecutor might not otherwise be able to use at trial. Adding a conspiracy count based on conduct that began in DC would enable Smith to allege, and introduce evidence to prove, a range of illicit acts Trump committed in Florida.
Those acts include his 18 months of stonewalling government requests to return the documents and apparently refusing to allow the Justice Department to inspect boxes that contained classified material. Then there’s the June 2022 false affidavit from Trump lawyer Christina Bobb attesting that a diligent search of Mar-a-Lago had been conducted and revealed no further government material responsive to a May 2022 grand jury subpoena. Two months later, the court-approved FBI search of the country club turned up more than one hundred documents with colored cover sheets and classified markings,
Because so much of that conduct is Florida-based, Smith could face challenges if he seeks to charge obstruction of a government investigation as a separate crime to be tried in DC. That’s not to say that the challenges are necessarily insurmountable.
For example, letters from Evan Corcoran, Trump’s lawyer – letters that appear to have been part of the obstruction – went to DC. Under the venue statute, “[a]ny offense involving the use of the mails … is a continuing offense and. … may be inquired of and prosecuted in any district from, through, or into which such … mail matter … moves.”
What’s more, the obstruction might also be charged as a conspiracy – for example, if Trump tampered with the Mar-a-Lago video surveillance tapes which would presumably require the assistance of his aides or staff. That’s important because a conspiracy to obstruct can also overcome venue questions and place the case firmly in DC, as others have explained.
Finally, there’s the grave Espionage Act charge of failing to deliver unlawfully possessed defense-related materials to the government. Because the unlawful retention occurred in Florida, whether Smith can try that case in DC will also depend on what other evidence he has, including mailings to Washington. If such evidence is available, Trump’s admission can help Smith show that the unlawful acts in Florida were part of a continuing offense that began in DC.
The central point is this: Whether Smith chooses to play it safe on venue by charging only unlawful removal of government documents and conspiracy to defraud the United States, or to take perhaps a bit more risk with charges under the Espionage Act or the obstruction statutes, Trump’s recent admissions have greatly strengthened the Special Counsel’s hand in bringing the case where it ultimately belongs: in the nation’s capital.