Trumpworld lawyers are trying to flip the script in the Mar-a-Lago case, citing “potential grand jury abuse” over the way Department of Justice Special Counsel Jack Smith keeps running what appears to be a parallel investigation in Washington.
And unlike other defense delay tactics, this one could actually affect the Department of Justice’s criminal case against former President Donald Trump for mishandling classified documents and hoarding them at his oceanside Mar-a-Lago estate in South Florida.
Smith now faces increasing pressure from U.S. District Judge Aileen M. Cannon, who was appointed by Trump himself and has already ruled heavily in his favor despite all odds.
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“She’s asking questions which are legitimate to be asked,” said University of Missouri law school professor emeritus Frank Bowman. “Although I’ve been pretty critical of previous rulings by Judge Cannon in this case—which are so bad as to have been absolutely inexplicable—nonetheless, at least at this point, there’s nothing untoward in her asking for some explanation of what special counsel’s up to.”
Smith’s prosecutors are now being cornered and forced to explain an objectively weird scenario: There appears to be an ongoing grand jury—whose proceedings are secret—in the nation’s capital long after a Miami grand jury already issued an indictment in June.
To defense lawyers representing Trump’s Diet Coke valet, Walt Nauta, the existence of an ongoing D.C. grand jury is like taking two bites of the same apple. And Trump’s defense lawyers are raising objections before Cannon.
“The government has engaged in multiple improprieties including, [among other things], convening a grand jury in a far-away district ostensibly to obtain evidence with respect to an indictment that was previously returned in the instant district,” Stanley E. Woodward Jr. and Sasha Dadan wrote in a court memo filed Friday.
It could amount to nothing more than a distraction to slow down Smith, who has been doggedly circling the former president in recent months. He revised the Mar-a-Lago indictment in July, slapping Trump with additional criminal charges for trying to orchestrate a coverup of the original crime. And more charges could be pending, given that there are still believed to be boxes of classified records missing from Mar-a-Lago that ended up in the real estate tycoon’s golf club residence at Bedminster, New Jersey.
But it could also allow Cannon to take decisive steps to limit the DOJ’s ongoing investigation, according to two other former prosecutors who have extensive experience with grand juries and spoke on background.
According to federal court rules, prosecutors must empanel a grand jury to consider criminal charges against someone in the same area where a crime was committed. That’s why federal prosecutors in Virginia are the ones who hunt down government contractors living in the D.C. suburbs who become spies—and it’s why the feds in New York City routinely crack down on Wall Street’s financial crimes. If the judge finds that Smith is somehow trying to cheat the system, she could punish the special counsel pursuing Trump.
Bowman, who spent several years as a federal prosecutor in South Florida and helped lead the criminal division there as its deputy chief, noted that the judge could take steps to limit Smith’s moves.
“It’s not going to result in a dismissal of the original indictment,” he said, adding that Cannon can decide “whether evidence can be used and whether sanctions can be brought against the Special Counsel’s office.”
A spokesman for Smith’s team would not answer any questions about the D.C. grand jury, refusing to even clarify whether the current one in question is the same grand jury that originally issued a subpoena to Trump seeking classified records at Mar-a-Lago last year.
However, Smith’s position as a DOJ special counsel with nationwide jurisdiction also grants him leeway that might indeed allow him to use grand juries all over the place. Unlike the U.S. attorneys who are appointed by the president to oversee particular local federal districts, a special counsel operates at a national scale—much like the prosecutors at DOJ headquarters in Washington who can splice up aspects of an investigation in districts across the country. And that means Smith can spin up a grand jury wherever his investigators perceive a crime to have taken place—even if it’s only part of the crime.
“He can operate in any federal district. Therefore, it’s not surprising or presumptively inappropriate for him to decide pieces of this investigation belong in District A while the center of gravity is in District B, and we’ll have a grand jury in A and B,” Bowman said. “He’s a different kind of bird than other US attorneys, which is one of the reasons why his method of proceeding here may seem unfamiliar.”
So far, Smith’s team has said very little about this other secretive grand jury up north.
But earlier this month, prosecutors revealed that this particular panel has “continued to investigate further obstructive activity.” Whatever it found seems to have fueled the superseding indictment that Smith filed on July 27 hitting Trump with additional criminal charges.
Days after informing Cannon about this other grand jury, the judge issued a strongly worded order asking defense lawyers to “address the legal propriety of using an out-of-district grand jury,” teeing up the current legal fight.
But the latest court filing by defense lawyers is a head-scratcher, raising even more questions about what exactly federal investigators have discovered—and hinting at even more misbehavior by Trump and his Mar-a-Lago employees.
In Friday’s court filing, Nauta’s lawyers complained about Smith’s use of a D.C. grand jury to bolster his overall investigation, arguing that it may not “be used for the purpose of garnering additional evidence to support the already-issued indictment, or to obtain pretrial discovery or engage in trial preparation.”
Raising even more eyebrows, there’s a footnote saying that “former President Trump, though counsel, joins in this submission to the extent it addresses the legal propriety of using an out-of-district grand jury proceeding to continue to investigate.” Notably, it’s the same court filing in which defense lawyers assert that there’s no conflict of interest in the way they’re representing Nauta, Mar-a-Lago employee Carlos De Oliveira, and an unindicted witness in the case, raising the specter that perhaps the feds suspect an even wider coverup scheme to shut people up.
It’s clear Trump’s lawyers want the judge to shut down this other grand jury before it’s too late—and before it uncovers anything else.
