Emptywheel- Where the Trump investigations stand: Stolen Documents

[Fiendish Thingy]

Last edited Sun Apr 30, 2023, 01:41 PM - Edit history (1)

https://www.emptywheel.net/2023/04/30/where-the-trump-investigations-stand-stolen-documents/

Excellent update and summary:

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.

-snip-

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.

-snip-

Whereas, if Smith were to charge only obstruction, venue in DC is not a stretch at all.

Much more, with receipts, at link.

[Bev54]

1. It is worth going over to Empty Wheel to read full article, she actually has 3

articles up, one on each of the DOJ investigations and one on the Georgia investigation.

[Fiendish Thingy]

2. Yes indeed- Emptywheel provides a wealth of information. Nt

[Scrivener7]

3. The article is pretty much all speculation.

I don't see the wealth of information you do.

Basically her points are these:
1)Smith is trying to get witnesses. Then she speculates about the things witnesses might do. This is not new information.

2)Epshteyn is in big trouble. Maybe he'll flip. Maybe not. This is not new information.

3) Smith is likely considering charges about the documents. This is not new information

4) There is likely a debate within the DOJ about charges on the documents case. This is not new information.

5) There is likely a debate within the DOJ about the best venue for a case. This is not new information.

6) Trump's lawyers actions indicate they are pursuing a weak line on the documents case. This is not new information.

7) Then she speculates about Trump's possible motives for taking the documents. OK. Good to know this is her opinion, I guess.

8) And she points out that we STILL don't have all the documents. And they are treating their retrieval, as always, with kid gloves.

What hard facts (not speculation) did you find in that article that you didn't know before?

[Fiendish Thingy]

5. The article is largely a summary of the known facts

With some explanation of the legal ramifications of those known facts, and yes, some informed speculation what the next steps are likely to be, or what options the prosecutors have, or what obstacles might crop up.

While the bulk of the information might not be new to you or me, it might be to those who don’t follow the story as closely. (Some of the developments discussed occurred in just the past week or so) That doesn’t make the article any less valuable.

In addition, the article takes the summary of publicly known information and adds what conclusions might be drawn, but just as important, if not more so, what conclusions can not be drawn.

I find emptywheel’s comprehensive articles to be excellent at refreshing my memory, or filling in gaps, and providing a punditry-free clarity without all the breathless clickbaity drama found on much of cable news. (Two exceptions are Joyce Vance and Barb McQuade, whose styles are similar to emptywheel’s, although they rarely get the time on air to go into the detail Marcy does).

[Cha]

4. TY & Empty Wheel & AG Garland $

[LetMyPeopleVote]

6. Why it matters if Donald Trump is charged in Florida or Washington (or both)

The choice of venue is very important.

Link to tweet

https://www.msnbc.com/deadline-white-house/deadline-legal-blog/florida-grand-jury-trump-documents-rcna88131

But the location in which any charges are brought — whether in Florida, Washington, D.C., or elsewhere — is more than just a matter of trial strategy. It has huge legal implications that prosecutors can’t afford to mess up, lest they risk the case getting thrown out.

That’s because of something known as venue. It's a legal requirement that charges be brought where the crimes allegedly occurred. Sometimes that’s simple — for example, if there’s a murder at a specific place, then its location gives the answer. Other times it’s less simple — for example, in the Trump probe, which involves activity over a period of time implicating multiple places, among them Florida and Washington. Grand jurors have reportedly heard evidence in both locations as part of Jack Smith's investigation into Trump's handling of classified materials.

The common wisdom is that Trump would rather be tried in Florida than in Washington, given he could have a more favorable jury pool and judges in the Sunshine State. Of course, facing criminal charges wouldn’t be a picnic anywhere, and the Supreme Court could resolve any appeals.

At any rate, while Smith may prefer Washington, the venue issue will factor into his charging decisions — and likely already has. Former U.S. Attorney Harry Litman explained on “Deadline: White House” Tuesday that if prosecutors choose the wrong venue, then the whole case can go away.

Link to tweet

[LetMyPeopleVote]

7. Pending Supreme Court Case Complicates Special Counsel Smith's Choices

Here is a good discussion of the possible effect of a pending SCOTUS case. I agree with Weismann and company that Special Counsel Jack Smith may want to file charges in both Florida and DC

Link to tweet

https://www.justsecurity.org/86845/pending-supreme-court-case-complicates-special-counsel-smiths-choices/

Indeed, a little-noted pending Supreme Court case may well be something that is complicating the calculus for Smith, leading to a particularly cautious approach on his part. The case at issue, argued before the Justices only a few weeks ago, concerns what happens when the government gets its venue decision wrong. Venue is an issue that can be submitted to a criminal trial jury, to decide whether the particular count the jury is considering is properly brought in the district.

The Supreme Court case concerns the legal ramifications when an appellate court or the jury itself determines that the charge was not properly brought in that district. One issue is whether the appropriate constitutional remedy is to prohibit the government from bringing the case in another district – preventing prosecutors from getting a second bite at the apple. An adjacent constitutional principle may also come into play: the double jeopardy clause. That clause typically arises when a jury returns a verdict of “not guilty,” which precludes the government from trying the defendant again for that crime. But what are the consequences when a jury (or appellate court) is “only” or specifically finding that the case was not tried in the correct district? Can the defendant be tried in another district? Does it depend on the good faith of the prosecutors in selecting the venue, or the factors the government considered, or is that all irrelevant?

It is always hazardous to try to guess the outcome of a Supreme Court case following oral argument. That said, “the US Supreme Court appeared unconvinced that trying a criminal case in the wrong place precludes prosecuting it again at the correct venue,” a close observer of the oral argument wrote. That may be true, but there were also several difficult and skeptical questions asked of the government. 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. Indeed, even the government’s own brief acknowledges that a judgment in its favor would still allow a court to impose the “remedy of acquittal without possibility of retrial … in extraordinary circumstances, where appropriate.” Following up on a question by the Chief Justice, Justice Elena Kagan asked if that statement in the brief is meant to guard against “bad faith” or other forms of abuse, which the Assistant Solicitor General answered it does. So what exactly the Court might choose as the test – even if it decides in favor of the government – is up in the air. Of course, even at this late stage, “a dismissal of the case as improvidently granted or some other narrow disposition is not out of the question,” professor Gabriel Chin observed following oral argument.

Regardless of what one might think the law should be, the law is at this moment unsettled. Even if the Department of Justice is hopeful the Court will rule in its favor, as of now the Supreme Court has not ruled.

The upshot: all else being equal, 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 for her crimes.