Where the Trump Investigations Stand: Stolen Documents
As noted in this post, I started to write short summaries of where the three main investigations into Trump stand, but they turned into posts. So I’m posting them serially.
In my post on the Georgia investigation, I noted that, as charging decisions have drawn near, Republicans in Georgia have started turning on each other. That’s worthwhile background for Jack Smith’s twin investigations.
That’s particularly true given the report that Boris Epshteyn met for two days with January 6 prosecutors on April 20 and 21, a report that has not yet been followed by any readout of what transpired, as well as the April 4 DC Circuit decision not to stay January 6 testimony from Mark Meadows and others, which similarly has not been matched by any report that Trump’s Chief of Staff has testified.
I’m not saying either man — both of whom are key players in both Jack Smith investigations — flipped. Both are dumbly loyal.
I’m saying that Smith is likely at the same point Willis is: trying to secure key witnesses for an eventual prosecution. Witnesses in a federal investigation might bank on Trump’s ability to beat Biden in 2024 and start pardoning people before they do serious prison time. If not, they might start seeking a deal. The single most useful thing about putting both Trump investigations under Smith is that he can leverage someone’s legal exposure in one part of the investigation to coerce their cooperation in another part where they’re crucial witnesses.
Epshteyn, for example, was the gatekeeper for the obstruction under investigation in the stolen documents case, as well as lawyers like Alina Habba who inexplicably testified in the documents case. But he’s also significantly exposed in the January 6 conspiracy. Plus, DOJ is currently investigating the cryptocurrency scam he and Steve Bannon used to dupe Trump supporters. He’s dumbly loyal. He’s also got a whole lot of criminal exposure.
From what we know of the stolen documents investigation, Smith has focused on three of the main questions he needs to answer for a charging decision:
- Obstruction (18 USC 1519): What happened in advance and after June 3, 2022 that resulted in Trump’s non-compliance with the May 11 subpoena. Who ordered and who knew about it?
- Espionage Act (18 USC 793): Are there classified documents that Trump deliberately hoarded about which prosecutors could tell compelling stories that would not, also, result in more damage to national security if declassified for trial?
- Deliberate removal (18 USC 2071): To what degree did Trump deliberately curate classified documents he wanted to take? Were there documents that his advisors persuaded him should not be declassified that he took when he left anyway? I think this is the least likely charge, unless there’s evidence that Trump stole stuff he had not managed to convince others to release publicly while President.
But there’s another question that may be just as important as the evidence to support the charges, and may elicit quite a debate within DOJ: venue. The easiest way to overcome all the difficulties with charging a former President with 793 would be to charge his retention of documents after the time when:
- The Archives had explained that retaining them was unlawful under the Presidential Records Act
- Both the Archives and DOJ had asked for them back
- Jay Bratt had informed him (through Evan Corcoran) that they were being stored improperly
That is, if he were to charge 793, Smith would likely charge for actions trump took between May and August of last year, at Mar-a-Lago. So (while some smart lawyers disagree) there would be at least a fair argument that it would have to be charged in SDFL.
Ideally any charges against a former President would be strong enough to convince a South Florida jury, but the possibility of Aileen Cannon presiding over such a trial would be daunting. Plus, judges in DC have far more experience dealing with cases involving classified information than most other districts other than EDVA.
Whereas, if Smith were to charge only obstruction, venue in DC is not a stretch at all.
The letter Trump’s lawyers sent to Mike Turner makes clear they believe (or hope) Trump will be charged only with obstruction. Their defense right now is that the Archives never should have referred the 15 boxes of classified records to the FBI (never mind that NARA did the same with Joe Biden), and therefore DOJ should never have issued the subpoena he blew off.
This defense has the advantage of playing to Republican voters who can easily be persuaded that Biden is being treated differently than Trump. That Trump’s lawyers have adopted it may suggest they believe that a President’s unfettered ability to declassify secrets would make 793 charges more difficult.
It would, normally! But DOJ has, at least, laid the groundwork to do just that. Much of what has been perceived as delay really consists of the Archives and DOJ working through each of the reasonable approaches past Presidents, as well as Biden and Mike Pence have adopted to classified documents. But ultimately the subpoena created the conditions in which prosecutors could easily prove the elements of the offense of a 793 charge: that he (1a) refused to give back (2) national defense information (3) in unsecure conditions (1b) after someone asked him to give it back.
Not only are Trump’s attorneys wildly ill-suited to an Espionage case, but as they admit in the letter, they haven’t reviewed the classified documents Trump retained. If, as some of the questions reportedly asked of witnesses seems to have suggested, Trump tried to curate classified documents for his own personal revenge, then it may make 793 charges more compelling.
And some of the last witnesses Smith brought in on this case, even after Evan Corcoran seemingly finalized evidentiary testimony on April 4, were the men who had declassified — but also, in some cases, declined to declassify — documents of unprecedented sensitivity for Trump, often in pursuit of revenge.
There’s one other matter that likely poses a challenge as Smith decides whether to charge this case: the challenge of getting any remaining documents back. Beryl Howell never gave DOJ the contempt ruling they wanted to use to compel Trump’s lawyers to retrieve remaining documents. Another way of doing so would be to conduct a coordinated search at the moment of a defendant’s arrest. But that would require a dramatically different kind of arrest than we expect to see.
Note that Trump has plans to visit his Irish golf resort this week.
Where the Trump Investigations Stand: Georgia
Where the Trump Investigations Stand: Stolen Documents
Where the Trump Investigations Stand: The January 6 Conspiracies
Where, indeed? Venue is addressed in the Constitution. Article III, Sec. 2 provides that “[t]he trial of all crimes . . . shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
This sounds like a straightforward directive, but it poses challenges in practice. With respect to obstruction, the D.C. Circuit finds that venue is appropriate where the act of obstruction took place. United States v. Swann, 441 F.2d 1053, 1055 (D.C. Cir. 1971). With respect to a possible obstruction charge relating to the documents this points to south Florida.
But if an obstruction charge were brought in Florida, Eleventh Circuit law would lead to a dismissal. The 11th Circuit finds that venue is proper in the district where the proceeding (the FBI investigation in D.C.) is obstructed.
So we have a circuit split that seemingly prevents a trial of the obstruction charge anywhere. Evan Barr has written about this. https://www.friedfrank.com/uploads/documents/b9f0d9c9124bb244978ad8ae134bf533.pdf
Unlike Barr’s thoughts that Smith might just bring charges in the District and hope for the best, I think there might be other possibilities.
18 U.S.C. § 3237(a) provides that “any offense involving . . . transportation in interstate . . . commerce . . . may be . . . prosecuted in any district . . . into which such commerce . . . moves. This is where Corcoran’s email to DOJ in D.C. seeking to delay the date of the search in response to the warrant may come into play. (I put a heavy emphasis on “may.”) But I think a strong case can be made that an email is an article in interstate commerce. The statute also provides for venue in multiple districts where the crime continues over more than one district, which might present another similar angle.
If memory serves me right, as MW pointed out in a post some time back the two Corcoran emailed letters that day were essentially for purposes of delay. If that delay was used to facilitate the obstruction, then I think the theory of charging in D.C. hangs together.
Regardless, I am confident if I know about this issue, that Smith & Co. know about this issue. And if they charge on obstruction in the documents case, they will have an answer on the issue of venue.
FWIW, it’s not entirely clear whether the 1519 is being treated as an obstruction of FBI’s investigation into the docs or NARA’s efforts to retrieve them. Though the former is far safer, and the subpoena in question was generated by a DC grand jury.
Could they indict Trump for obstruction of the FBI investigation in DC and separately indict him in FL for obstruction of NARA’s efforts to retrieve the documents?
The cases would be consolidated.
Thanks! Who would decide in which venue they’d be consolidated? Is this kind of thing commonly part of a prosecutorial game plan? Have there been examples of using two charges where one has a stronger argument for the prosecutor’s preferred venue in order to shoe-horn the other charge that would otherwise be more appropriate in the undesirable venue? It seems like from what you guys are saying that obstruction is the easier case to win, but DC is the easier place to win.
Espionage Act might be the easier case to win bc the govt gets a bunch of advantages, tho it may work differently with an ex-president.
There are rules to prevent prosecutors from playing these games, and I’m fairly certain Smith/Garland wouldn’t try them. In DC, at least, the earliest filed case is where any related ones end up.
Yes, but for purposes of 11th Circuit law it’s irrelevant because however you frame the obstructed proceeding it’s in D.C. So you can’t bring the obstruction case in S. Florida. And, as you point out, DOJ will want to bring the obstruction and wrongful retention charges in the same proceeding, if they do charge them. Unless, I’m missing something fundamental, it’s necessary to find a D.C. link to the scheme of obstruction. This is also consistent with the fact that the witnesses are being presented to a grand jury in D.C. Sure you could empanel one in S. Florida, but it’s a bit late in the day.
The other oddity that caught my attention were the news articles that indicated witnesses were being asked whether Trump showed them classified (national defense intelligence) material on a plane flight(s). We can save the issue of venue for crimes committed while airborne for another day.
Oh I didn’t think about the plane…
So, Marcy, is it either Obstruction charges in DC, OR Espionage charge in FL, or can it be both in two different jurisdictions?
Thanks for asking this. That was my question as well.
If they charge both they’ll charge them in the same place. That’s because they’re utterly related stories. The REASON you can charge a former President with 793 is because of the things he did to obstruct compliance with the subpoena.
Could they charge obstruction in DC first and then supersede to add an espionage charge a little later to the existing case assigned to a District Court judge in DC? Would that solve the issue for the prosecutors?
There’s hardly a full sentence that I thoroughly understand in these threads. But I wouldn’t trade following emptywheel for all the pecan pie in Georgia, let alone for the out-of-pocket pittance I contribute. It’s a privilege to read this much earnest effort to defend what is still the best system of IRL governance. Kudos.
[FYI — Your duplicate comment was deleted and the username changed to match that used on the deleted comment as I suspect you didn’t mean to use your RL name. /~Rayne]
You and me both!
[FYI — commenter’s RL name removed. /~Rayne]
Thanks for these 3 summary posts – very helpful and enjoyable to read.
Any theories as to how this might affect the situation? And like Fiendish Thingy and klynn I’m curious about whether the charges could be split between DC and FL. Also, if they bring charges in FL what’s the percentage chance it will fall to Aileen Cannon? And could she be forced to recuse?
Apart from any other considerations does he think he will get one over on Biden by visiting Ireland? He will not be in the least welcome.
I am pretty sure I’m asking a question that has a complicated answer, but I’ll ask it anyway.
What’s the upside/downside of charging obstruction in DC (assuming that the prosecutors in DC have a compelling case, and obtain a conviction)?
Does that make it easier to charge Trump under 793, whether in DC or in Florida?
It was mentioned that trumphumper Judge Cannon might be selected if the case is filed in SDFL. That’s one risk Smith might not want to take.
Another is he might want to avoid having to deal with a jury made up of Rush Limbaugh’s neighbors and others who voted in Scott, Rubio, desantis, etc.
Would charging deliberate removal (18 USC 2071) guarantee the proper venue is DC? If so, this should be charged, assuming the obstruction and espionage charges could be consolidated with it in DC.
2nd question: where’s the venue for wire fraud?
Most probably OT, there is this article in NYT about a British Spy in Iran, who was arrested in 2019, after Russia tipped Iran about it. That same year NYT boasts it had revealed that the information about Iran came from a British spy. I wonder where both Russia and NYT got the info.