Last year, federal prosecutors had to choose between bringing the charges in Washington, DC or Florida before indicting Donald Trump for illegally mishandling secret data.
They decided to charge the ex-president in Florida, and that was a disastrous move. The federal judge overseeing the criminal case in Florida took a very different approach than the DC judges did.
These strategies were laid bare last week when the opinions of two federal judges in Washington, DC, were unsealed, showing how the case may have progressed considerably more swiftly and harshly for Trump had it stayed in the nation’s capital.
The federal judge in charge of Trump’s case in Florida has been embroiled in a fresh controversy regarding a gag order for the ex-president, an issue that judges in Washington, DC, have previously addressed. This controversy arose during the holiday weekend.
Judgment on the issues of attorney-client privilege and grand jury secrecy, which Judge Aileen Cannon has spent months discussing in Florida, has been met with profound skepticism by Chief Judge James “Jeb” Boasberg of the District of Columbia District Court and his predecessor, Judge Beryl Howell, in the newly revealed opinions.
Special counsel Jack Smith indicted Trump for mishandling secret documents about a year ago, but the case is still stuck because Cannon is reluctant to rule on the issues before her, and it looks like it won’t go to trial before November.
Prosecutors have recently asked Cannon to address their new request to limit Trump’s comments regarding law enforcement and witnesses in the documents case. This is due to Trump’s repeated false claims that the FBI was ready to use lethal force against him during the 2022 search of Mar-a-Lago.
Tanya Chutkan, a federal judge in Washington, DC, is presiding over a separate criminal case involving the 2020 election. A gag order was imposed on Trump months ago by Chutkan, prohibiting him from making any statements regarding the witnesses or anyone else involved in the case that could be seen as intimidating or detrimental to the proceedings.
Prosecutors asked Cannon in a filing Friday night to rein in Trump’s statements, but she has not yet answered.
In the last weeks, the investigation shifted to Miami.
The federal grand jury in Washington, DC, which was tasked with hearing testimony in the documents case against Trump, continued to do so for months following the August 2022 seizure of hundreds of secret documents from Trump’s Mar-a-Lago house by the FBI. However, in the last stages of the investigation, the Justice Department transferred it to a grand jury in Miami. Trump would later face charges in federal court in South Florida, as the majority of his alleged illicit activities occurred at Mar-a-Lago in Palm Beach, Florida.
In their battles with the defense teams over secrecy, particularly at a recent hearing before Cannon, prosecutors have discussed the decision to transfer the case to Florida, but they have publicly revealed very little about the decision. There was sufficient connectivity for the inquiry to proceed in Washington before the grand jury met there, as far as I’m concerned. “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.
In the hopes that Cannon would disagree with Howell and Boasberg and wish to investigate the prosecution’s decisions, Trump and his co-defendants’ lawyers have spent months attempting to take advantage of that move.
The government has requested Cannon to reconsider key issues that Howell and Boasberg had already decided upon, such as whether or not prosecutors were able to get testimony from Trump’s ex-attorney Evan Corcoran before the DC grand jury. Although it may have been more challenging for the defense had the case remained in Washington, DC, Trump’s team is now attempting to remove that testimony from the prosecution’s case altogether.
After determining that Corcoran’s communications with Trump did not fall under the attorney-client privilege due to their nature as aiding in the commission of a crime, Howell had him testify before the grand jury last year. Trump’s alleged attempts to conceal the sensitive data from federal investigators were outlined in Corcoran’s testimony, which went on to inform major aspects of the indictment.
The decision from Howell gave Cannon a “clear road map” to examine the attorney-client privilege problems, according to DC-based national security expert and lawyer Bradley Moss.
Cannon, however, has not even set a date for a hearing to address the matter, which the parties first raised in court documents back in February.
It is “inexcusable” that she is still ignoring the situation, Moss stated.
Cannon has been less quick to issue rulings on the matters before her than the judges in the District of Columbia. This has resulted in the defendants being able to argue their claims for multiple rounds in court and the case being diverted from its core issues to arguments that many legal scholars consider to be on the fringes.
“Convincing proof” Trump concealed records
Howell stated that there was “strong evidence” that Trump “intended” to conceal the sensitive papers in a pre-indictment order that allowed investigators to access details of discussions between Trump and his attorney that would have otherwise been covered by privilege. Prosecutors have argued that Trump engaged in possibly illegal obstructive activity, and Howell’s 84-page ruling from March of last year agreed with them.
Three months later, charges were filed against Trump; Howell examined much of the same behavior, and the judge determined that the prosecution had presented “sufficient” proof of wrongdoing to justify violating the privilege. That standard is lower than what the jury will face when deliberating the case.
However, in order to complete the exercise, Howell had to answer some of the same defenses that Trump’s attorneys are currently presenting to Cannon.
For example, according to Howell, classified documents were kept in unauthorized and unsecured locations, and even though Trump had the power to retain the materials as a former president, he was necessary to “safeguard” them by a pertinent statute.
Donald Trump’s use of a parallel argument in his trial has further entangled Cannon. After hours of oral arguments, another round of written arguments, and a conclusion that avoided the argument’s legal merits, she finally denied Trump’s attempt to dismiss the lawsuit, reasoning that he might have retained them after he left office.