'Womp womp': CIA lawyer explains why popular claim about Jack Smith's Trump FL case is 'not true'

27 May 2024

Almost one year after special counsel Jack Smith indicted Donald Trump on charges related to his mishandling of classified documents, presiding Judge Aileen Cannon has indefinitely postponed the trial, fueling questions of whether or not the prosecutor should have charged the MAGA hopeful in Washington, DC, instead of Florida.

CNN reported Monday:

Prosecutors have publicly disclosed little about the choice to move the case to Florida, though it has become a topic of discussion in the fights with the defense teams over secrecy, especially at a recent hearing before Cannon. 'I can say that the investigation that was ongoing before the DC grand jury had – had adequate nexus to continue in Washington. I’m not prepared to comment on the date on which a decision to charge in Florida was made or what the internal deliberations were on that subject,' special counsel’s office prosecutor David Harbach told Cannon at a hearing last week.

Former CIA attorney Brian D. Greer took to X (formerly Twitter) Monday to fact-check claims that the special counsel should have charged the former president in DC in order to avoid Cannon. Legal experts have voiced concern regarding the judge's often displayed favor towards Trump.

"Since the 'Smith should have just brought the documents case in DC' chorus is picking up again, it's time for a reminder as to why that's not true," Greer wrote. "Please read before continuing to propagate this false premise."

The ex-CIA lawyer continued, "Smith is bound by the Constitution, federal law, and case law -- which collectively requires that, at minimum, a 'conduct element' of the offense be committed in the district where it's charged. Let's look at the offenses."

Greer goes on to explain why Smith couldn't have charged Trump in DC.

"For the Espionage Act charges, Trump is charged with unlawfully retaining the docs. The issue with charging him in DC is that he was still POTUS when he removed the docs from the White House down to Florida. He arguably was within his rights to do so, even if it's egregious."

He continued, "Charging that 'overt act' would have run straight into a presidential immunity assertion, as handling classified records is likely to be seen as an official act while President. Everything that's happened w[ith] the J6 case would have happened here...except Trump would have had a better immunity argument, one that SCOTUS likely would have sided with, before trial. So that leaves the various obstruction charges. There too, all of the 'conduct elements' for those charges occurred in Florida, not DC."

"The only potential hook for venue there might be that grand jury was based in DC, and their actions were aimed at obstructing its operations (this would have required tweaking the charges a bit)," Greer added. "But this would have been subject to a serious (and likely successful) challenge...as no factual predicate occurred in DC. Probably a loser. Finally, remember that there's no ancillary jurisdiction in criminal cases. You have to establish venue for each charge individually, so there's no bootstrapping. Remember how Manafort had trials in DC and EDVA?

Greer concluded, "So yes, having to charge the case in S.D. [Southern District of] Florida, where drawing Cannon was very likely, completely sucked. But prosecutors are bound by the Constitution, the law, and reality -- so charging the case there was the right thing to do, and really the only chase they had. Womp womp."

From Your Site Articles