Jack Smith’s Original Sin
Ask any former prosecutor. Special Counsel Jack Smith’s decision to bring the purloined documents case against Donald Trump in the Southern District of Florida instead of the District of Columbia was a strategic, if not catastrophic, error.
While the acclaimed prosecutor couldn’t have anticipated as hostile a jurist as District Judge Aileen Cannon, he should have expected that South Florida would be trouble regarding jurors sympathetic to the former president and conservative but less esteemed judges than one would find in the District of Columbia where many have a background in classified documents cases.
Last week, Cannon vacated her scheduled order for a May 20 trial and refused to set another date. It wasn’t unanticipated, given her performance thus far. When she’s not delaying the case, she’s being rebuffed in appellate courts. Now, the case of the documents—a much easier case for Smith and the United States to win than the also-in-purgatory insurrection case—will almost certainly not proceed before the election, let alone conclude before Americans vote in November.
Lawyers call Cannon’s bizarre procedure a postponement sine die, which means somewhere between now and never. Smith had asked for a July trial date, but Cannon said it would be “imprudent and inconsistent” with her duty to “fairly consider the various pending pre-trial motions … [and] … critical CIPA [Classified Information Procedures Act] issues … necessary to present this case to a jury.”
Cannon is an admixture of bias and incompetence. The 43-year-old Trump appointee has never handled a case involving the nuances of classified documents or other high-profile showdowns. The appellate court had twice rebuked her for her erroneous decisions in Trump’s challenges to the Mar-a-Lago search warrant. They all played into Trump’s strategy of delay, delay, delay.
But Smith also has much to answer for. He over-prosecuted his case. He did not need to join Trump’s valet, Waltine Nauta, and his Mar-a-Lago property manager, Carlos De Oliveira, as defendants. It only complicated discovery and played into Trump’s strategy of dragging everything out until Election Day when, if returned to office, he could make the case go away. Under the present circumstance, Nauta and De Oliveira could argue with some force: Look, Judge, I only help out at Mar-a-Lago. There are a million pages of discovery. I need time. The two could have been indicted separately. This would have worked well if Smith had been looking for them to cooperate, and even if they had not chosen to aid Smith, the evidence against them would have been admissible against Trump as acts that assisted the former president in committing the crime.
However, Smith’s original sin was bringing the case to Florida rather than the District of Columbia. The jury pool in Florida would be favorable to Trump. In 2020, Trump won Florida with 51.2 percent of the vote. In the District of Columbia, he won 5.4 percent.
Smith must have thought he had good odds of avoiding Judge Cannon when he opted for Florida. She sits in Fort Pierce, Florida. He filed the indictment in Miami, where the grand jury sat. The Southern District of Florida is administratively divided into five divisions: Miami, Fort Lauderdale, West Palm Beach, Fort Pierce, and Key West. Smith overlooked that Miami and Fort Lauderdale judges are not in the pool for Palm Beach cases. Fort Pierce, where the crime did not occur, is 68 miles north of Palm Beach, where some of the crimes did occur, and 128 miles north of Miami. There were 26 judges in the Southern District of Florida to whom the case might have been assigned. Actually, Smith’s odds were one in three of getting Cannon because of the peculiarity of local rules, which lumped Fort Pierce and Palm Beach together. Smith needed to draw an inside straight but was dealt the death card.
The documents case was a slam dunk, Smith’s ace in the hole. (Pick your metaphor.). The facts were not in serious dispute. Trump took classified documents from the White House, carted them away in boxes to his Mar-a-Lago estate, and refused to return them when repeatedly asked to do so. He then moved the documents around the mansion to avoid the prying eyes of federal officers sent by the Department of Justice to retrieve them. Eventually, the feds raided Mar-a-Lago.
The judges in D.C. are highly skilled in classified documents cases, and they know how to weigh and sift the competing issues of national security and the defendant’s due process rights. Most judges in Florida have never handled a classified documents case. For sure, Cannon never handled one.
Yes, D.C. had drawbacks as a venue, too. Trump would have moved to dismiss in D.C. because his team would argue that the case had to be brought to Florida, where the center of gravity of the alleged crime occurred. They might have argued that if all the documents had been taken to Florida while Trump was president, there would have been no D.C. crime. But Smith could have pushed past that. The mishandling began in the capital, too, and his intent to keep them was formed there. Moreover, Trump’s flouted requests were from the National Archives in Washington. Trump would also have argued that he couldn’t get a fair hearing in D.C., but the D.C. court had already ruled that the January 6 cases could be tried in D.C. with no problem selecting a fair and impartial jury.
Choosing a venue is always an important question. If you commit murder in New York, the prosecutor can’t willy-nilly move the case to Texas. For instance, while, hypothetically, it might have been possible for Smith to bring the case in New Jersey, where some classified documents seem to have made their way during a layover at Trump’s Bedminster golf club, that would have been a stretch.
D.C. was a reasonable venue and certainly worth trying to secure. But I suspect Smith didn’t want to look like he was forum shopping and deliberately avoiding a red state. But so, what? He will be accused of political bias no matter what he does. Trump denounces him all the time. Plus, Smith might have figured the documents case was so straightforward that he could win even with a South Florida jury, but that was before Judge Cannon got the case, and the likelihood that it ever goes to a jury disappears day by day.
Justice Antonin Scalia once told me, “Federal district judges have an awful lot of power.” They can issue non-appealable interlocutory orders that determine the fate of cases or make them disappear. They are masters of cleaning up their dockets that way.
Before last week, there was little doubt that Cannon, a Federalist Society alum championed by Senator Marco Rubio, was hell-bent on delaying the case until after the election. Now, there is no doubt.
Everybody has known for months that the May 20 trial date wouldn’t happen, as Cannon let critical motions accumulate on her desk without a ruling. But Cannon’s orders still can shock, such as the language where she vacates the trial date and says she’ll set a new one… someday after she decides all the pending motions. A cleverer shirker would have at least announced when they’d make their next announcement.
Besides the pre-trial motions, which Cannon says she will not reach until the end of July, there are critical issues regarding how classified documents may be used at trial without endangering national security. Here, the Classified Information and Procedures Act sets the essential legal test. CIPA requires defendants in Espionage Act cases, like Trump, to notify the government if they intend to use any classified discovery as evidence at trial. The idea is to avoid the prospect of a defendant’s “gray mailing” the government into dismissing charges to prevent damage to national security. I once won a case that way.
The pre-trial steps for handling classified information under CIPA must still be completed. That process was supposed to get set in motion last week, with Trump filing his notice. Once Cannon makes her decisions, the prosecution is entitled to take an expedited appeal to the Eleventh Circuit if it disagrees with any of them. But Cannon extended the time for Trump to file his notice until mid-June, delaying the time when she will have to make one of her most critical pre-trial rulings, knowing that it will be immediately scrutinized by the very Court of Appeals that has already reversed and rebuked her twice.
If she had worked on the motions and scheduled realistic deadlines, this case could have been ready for trial in December or January.
The Speedy Trial Act states, “In any case involving a defendant charged with an offense, the [judge]…shall…set the case for trial on a day certain… to assure a speedy trial.” The Supreme Court, in an opinion by Justice Samuel Alito, has held that the public and the defendant are both entitled to a speedy trial. Any trial lawyer would be amazed that a judge, contrary to the law, refuses to set a trial date because of eight motions pending on her docket that she has failed to decide.
Of the eight still pending before Cannon, two are not public. She has set hearings for all of them and also calendared other deadlines and items the parties must file between now and late July:
The motions Cannon has determined require a hearing include motions former United States Attorney and legal analyst Joyce Vance observes are ones “most judges would have given short shrift to.” For example, Trump filed a dilatory motion to broaden the scope of what “prosecution team” means. That would determine how broadly prosecutors are required to search for discovery that must be turned over to a defendant. He thinks that instead of just prosecutors and law enforcement agents, the usual definition should include the White House, the intelligence community, the National Archives, and other denizens of the “deep state” who were neither investigators nor witnesses for this case.
Meanwhile, all this procedural kerfuffle serves only Trump’s interest in delay. The real issue is that Trump not only kept classified information he was not entitled to but littered the documents in a shocking display of recklessness from the bathroom to the ballroom at Mar-a-Lago and willfully obstructed efforts by the government to retrieve its property. He was even recorded saying about one document that he shouldn’t have it in his possession. If the current presidential polls hold firm, Trump will never have to account for this criminal mishandling.
Hamlet bewailed the calamities of life, among them “the law’s delay.” Delay is a legitimate tool in every trial lawyer’s bag of tricks. But it is up to the judge to throttle such approaches. Here, both judge and prosecutor played into Trump’s hand. If there ever was a case where justice delayed is justice denied, it is this one. Federal District Court in Washington D.C. has plenty of hardcore conservative jurists appointed since Ronald Reagan’s day, but I can’t imagine any of them having aided and abetted Trump’s delay the way Cannon has. Smith must know that, too, and be ruing his decision to take his chances in the Sunshine State.
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