Dear Reader,

Early in my career as a prosecutor, a grizzled, battle-worn New York City defense lawyer said to me, “Jury selection isn’t just the most important part of a trial – it’s the whole ballgame.” There’s a bit of hyperbole there – the actual presentation of evidence matters a bit, too – but his point stuck with me. Over the years, as I grew into a bit of an old trial battle-ax myself, I’d sometimes recall this lawyer’s admonition, with appreciation for its fundamental truth.

In all the attention rightly paid to the first-ever federal indictment of a former president, much of the focus has been on the indictment itself, and the charges and the evidence contained therein. While the “what” of it remains the top line, don’t underestimate the “where.” By choosing to charge the Trump case in federal district court in Florida rather than in Washington, DC, Special Counsel Jack Smith made a tough call, and the right call – even if it makes the Justice Department’s ultimate task, a conviction of Trump, more difficult.

Up until about a week before the Trump indictment, it looked like the case was headed to Washington. Smith’s team of prosecutors was based in the nation’s capital, and the publicly-known grand jury activity was happening there too. But then, suddenly, reports surfaced that witnesses were testifying in a different grand jury, in the Southern District of Florida. At first, it seemed this might be a ministerial accommodation; perhaps a few witnesses couldn’t make it up to DC, so were allowed to testify in Florida instead (whereafter prosecutors could simply read their testimony into the record for the DC grand jury). But then, seemingly within hours, the locus of the case migrated south; the tell for me was when Smith’s top prosecutors relocated down to Florida. When the indictment dropped, it landed in the Sunshine State. 

Trump’s legal team must’ve rejoiced at their good fortune. Yes, the parties will have a chance to vet and eliminate overtly biased potential jurors, and the judge will instruct jurors to put aside their personal and political beliefs. But let’s be real here: if you were Donald Trump, where would you rather face a jury? Washington, DC, where 95.6% of the populace voted against you in 2020, or Florida, where you won in 2020 with 51.2% of the vote? (Trump’s jury will be drawn from Florida’s southern counties, where he generally didn’t do quite as well, but he’s still likely to have a jury pool of around 40% to 45% supporters). A DC jury of twelve civilians might include one Trump 2020 voter, or none. A southern Florida jury likely will include five, six, or more Trump voters.

So why would Smith’s team choose Florida over DC? The primary answer, I believe, is that it was the safest move, legally. The key concept here is called “venue.” In any federal case, prosecutors must charge in a federal geographic district where at least some of the alleged criminal activity occurred. If a crime happens in multiple districts, prosecutors have broad latitude to choose, so long as some part of the crime happened in the district where the charge lands. (At the Southern District of New York, we were infamous for stretching this principle; I once charged a 20-defendant case where virtually all of the conduct happened in another district – because one poor sap of a defendant placed one phone call from Manhattan.)

There’s no question here that Smith has chosen a legally proper venue in the Southern District of Florida, where Mar-a-Lago sits. That’s where the bulk of the charged criminal activity occurred: the wrongful retention of defense information, the efforts to obstruct justice, the false statements. But if Smith had tried to charge in DC, he would have run into problems. He might have argued that DC was essentially the scene of the crime, the place from which Trump illegally took classified documents; if you rob a bank in DC and bring the proceeds down to Florida, the argument might go, you can certainly be charged in DC. But Trump himself, and the documents at issue, physically left DC before his presidency ended at noon on January 20, 2021 – when it was not yet illegal for him to have those documents. The crime – unlawful retention of defense information – therefore started, at the very earliest, at 12:01 p.m., right when he left office. But by that time, Trump and the docs were already out of DC. So it’s not clear Trump ever committed any criminal act relating to the documents in DC. I’m not saying Smith surely would have lost a legal argument over venue had he charged in DC (though, in my view, he probably would have lost). He absolutely would have contended with a vexing (and potentially time-consuming) issue that likely would have wound up the subject of an appeal. Smith’s decision to charge in Florida obviated any venue objection, and took that particular issue off the board.   

There’s another, more subtle upside to DOJ’s decision to bring the case in Florida. First, by charging Trump on his own home turf, in a red state, the Justice Department insulates itself against accusations that it forum-shopped and stretched to bring the case in DC, likely the most dramatically anti-Trump district in the United States. Smith’s critics cannot reasonably argue that he tried to game the system. To the contrary, DOJ has played it straight and let the chips fall as they might. Smith’s decision to charge in Florida is a statement of sorts: I’m confident enough in my evidence that I can put it in front of anybody, regardless of personal politics.

Smith and his team must have agonized over this decision. I assure you that, if I was one of his prosecutors, I’d have been furiously making the case to at least try charging in DC (at least at first, though I might have ultimately seen the wisdom of going with Florida). This is a constant temptation faced by prosecutors; play it by the book, or do whatever maximizes your chance to “win.” Here, Smith made the right, if not necessarily expedient, move. And that’s what the Justice Department should be all about. 

Stay Informed,

Elie

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