Jack Smith’s Backup Option
According to the Justice Department and a taped recording of the former president, Trump took classified records from Mar-a-Lago to Bedminster, where he showed off the contents of such records to others. The indictment alleges that Trump showed a map to a political ally and also showed a writer and a publisher a secret military plan to attack Iran. These two episodes were arguably the most egregious allegations of criminal wrongdoing mentioned in the indictment; they allege not just the improper retention of our nation’s most highly classified information, but the intentional communication of such information.
But these two allegations raise a question: Why did Special Counsel Jack Smith charge Trump with illegal retention of classified documents but not with dissemination of such materials? And is that decision final, or could dissemination charges still be in the works?
[I wondered about Bedminster. I didn’t know that the FL indictment didn’t charge the most serious crime and don’t know why Smith wouldn’t charge the most serious crime. I don’t like the headline and hope that New Jersey isn’t a “backup.” The two incidents are charged in the Florida indictment. How could a “backup plan” be to charge them in an indictment in NJ? I don’t see how the NJ indictment wouldn’t be double jeopardy. Aside from the legality a “backup plan” smacks even me of fundamental unfairness.]
The Justice Manual, the Department of Justice’s guidebook on criminal procedure, as well as guidance from the attorney general’s office, advises prosecutors to give strong consideration to charges of dissemination before making them. According to the manual, once a determination is made that an indictment is warranted, “the prosecutor must select the most appropriate charges,” and “ordinarily, those charges will include the most serious offense that is encompassed by the defendant’s conduct and that is likely to result in a sustainable conviction.” Attorney General Merrick Garland has indicated that the prosecutor can consider a number of factors in deciding whether to bring the most serious charges.
Smith appears to have taken a cautious, narrow approach. Even though the indictment describes alleged dissemination and disclosure of national-security secrets, the indictment did not charge Trump with those offenses.
…perhaps Smith did not want to count on the Supreme Court to recognize Florida as an appropriate venue. Judges have not issued definitive rulings on how the law of venue applies to the national-security statutes under which Trump has been charged. … Smith might have reasoned that the government could lose on the issue of venue for any dissemination charges it tried in a Florida court. And that could potentially be fatal to ever bringing those charges even in the place that’s an obvious venue option: New Jersey.
[I don't know that to be the case. In fact, in my one experience with a mis-venued case the prosecution, albeit state, not federal, could have refiled the case in the proper venue after it was thrown out.]
…
If Aileen Cannon, the Florida judge assigned to the case, were to seek to pocket-veto the charges before her by, say, scheduling the trial for after the 2024 presidential election, the special counsel would be able to sidestep her tactic by proceeding with charges in New Jersey.
[THAT would get around double jeopardy.]
In fact, the Miami indictment conspicuously excludes many facts surrounding Trump’s actions in Bedminster: what boxes were taken there, what they contained, how they were kept at the golf club. …
Smith might still decide against bringing a separate indictment for dissemination, because such a move could be painted as overcharging. The government usually tries to avoid being seen as piling on…
[Yes, and I REALLY don’t think Smith is going to do that. I thought that Smith was so confident that he had a slam-dunk case that he would win it among jurors chosen from Mar a-Lago members. The FL grand jury was a, comparatively, last minute choice. I thought—I DO NOT KNOW THIS—that Smith misunderstood the odds of drawing Loose Cannon again. All I can tell you for sure is that if Smith is keeping NJ as a backup plan it is going to backfire.]
