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Why Is Trump Being Indicted in Florida?
Instead of just D.C.?
[On the June 8, 2023 episode of the Bulwark Podcast—recorded before the news of Trump’s federal indictment—host Charlie Sykes asked guest Ben Wittes why Special Counsel Jack Smith is reportedly indicting former President Donald Trump in Florida. The exchange, lightly edited for clarity, appears below.]
Charles Sykes: Okay, so I’m gonna break this case down. Big question this week is why has the venue been shifted to South Florida? We’re getting these reports from the Washington Post that look like that is the focus of the indictments. What is Jack Smith doing? Why are there two grand juries looking at the same case? And where will the charges come from?
Ben Wittes: We don’t know the answer to the ‘why’ or internal discussions question, but we can speculate about it a bit responsibly, I think, based on what we know.
So venue is a complicated subject in the law. . . . There’s an excellent article in Lawfare about venue in this case that was cowritten by one of the Mueller prosecutors, Brandon Van Grack, that people should take a look at if they want the details on venue in this instance. But suffice it to say, if you are a federal prosecutor, you would like to bring this case in Washington if you can. The district bench in Washington is of a very, very high quality; as we saw with Judge Aileen Cannon, in South Florida, the district bench is of a little bit more erratic quality.
In addition, the jury pool is more favorable to prosecuting Donald Trump in the District [of Columbia] than it is going to be right near his home and Mar-a-Lago.
That said, as a general matter in federal cases, you’ve got to bring the case—with a certain degree of latitude—where the crime took place. And there are parts of this case that took place in D.C. For example, if Donald Trump purloined material from the White House or lied to the National Archives and Records Administration (NARA) in letters that were sent to Washington, you can say Well, all right, that’s D.C. But the gravamen of the activity in the case—the storing, hoarding material at Mar-a-Lago; the obstructions of the federal investigation; to showing the documents to people—all appear to have taken place in South Florida. . . .
We know that at some point, Mr. Smith, determined that he was going to have to bring a bunch of the case in Florida. I think that . . . probably was reluctance on his part—that he probably spent some time trying to figure out whether he could approve venue in the District. Ultimately he decides that he can’t: the entire investigation was done here [in D.C.] before a grand jury and so you then have to open proceedings before a grand jury down there if you’re going to bring a bunch of the case there. That seems to have happened in May. And I expect that they will bring the body of the case there but anything that they can bring in D.C. . . .
Sykes: There could be indictments coming both from South Florida and from the grand jury in D.C.
Wittes: It’s certainly possible, particularly if you have evidence that related to the removal of the documents in the first place, as well as to, say, false statements to the National Archives, right? There are individual components of the case that may be more appropriate in the District.
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