Since the Department of Justice’s indictment of former President Donald Trump, legal experts have noted that Special Counsel Jack Smith has chosen to proceed in a challenging venue: the Southern District of Florida.
That’s the jurisdiction of Trump’s Mar-a-Lago home, where the jury pool is likely to be more conservative, and where the case has been assigned to his appointee U.S. District Judge Aileen Cannon. Her favorable — and since overturned — rulings to the former president led many to believe his criminal case has landed on friendly terrain.
On Thursday, the Supreme Court issued a ruling which, had it arrived earlier, may have given Smith the confidence to have filed the case in the deep-blue District of D.C., which Biden won in 2020 with 93% of the vote. In comparison, Palm Beach County went 55% for Biden.
“The Constitution permits the retrial of a defendant following a trial in an improper venue conducted before a jury drawn from the wrong district,” conservative Supreme Court Justice Samuel Alito held in the case of Smith v. United States.
The underlying case has none of the political intrigue or other trappings of international news.
It relates to the case of Alabama software engineer and “avid angler” Timothy Smith, who was accused of stealing trade secrets from a company that uses sonar equipment to identify artificial reefs used to attract fish.
“This business model irritated Smith, who believed that StrikeLines was unfairly profiting from the work of private reef builders,” the opinion states.
Smith used a web application to obtain coordinates in the first of a series of events that led to his indictment in the Northern District of Florida on theft of trade secrets and other charges. He argued that he should have been prosecuted in Alabama, where he accessed the data. That position failed on the trial court level but connected before the 11th Circuit, which found the venue improper as to the trade secret charge. The intermediate appellate court allowed retrial on that charge, however.
Petitioning the Supreme Court, Smith’s legal team argued that double-jeopardy protections should have barred his retrial. The Supreme Court unanimously disagreed with him.
“When a conviction is obtained in a proceeding marred by harmful trial error, ‘the accused has a strong interest in obtaining a fair readjudication of his guilt,’ and society ‘maintains a valid concern for insuring that the guilty are punished,'” the high court held.
Had this decision landed slightly earlier, former federal prosecutor Mitchell Epner said, the special counsel may “very well might have brought the case in D.C., rather than SD Florida.”
“Since SCOTUS had granted cert in this case, there was a real fear that it would reverse the 11th Circuit,” Epner told Law&Crime. “Had SCOTUS reversed the 11th Circuit, the rule would have been that trying Trump in the wrong venue (DC is arguably not a proper venue) would lead to an automatic acquittal.”
“Special Counsel Smith was being prudent in not running that risk,” Epner continued. “That risk has now dissipated.”
Former federal prosecutor Renato Mariotti doubts that the Supreme Court’s precedent landing earlier would have made much of a difference.
When asked whether different timing would have changed the court, Mariotti answered: “No, because the DOJ is supposed to charge where venue is appropriate regardless of what the consequences are for prosecuting in the wrong venue.”
Ex-U.S. Attorney Harry Litman, the host of the Talking Feds podcast and a senior columnist at the Los Angeles Times, split the difference in a Twitter thread, where he noted that the grand jury spent most of its time in Washington, D.C. He also noted that the crimes alleged in the indictment arguably began there.
By changing the calculation about the stakes of a wrong venue decision, Litman argued, the DOJ could have had “more than a good faith basis” for thinking the venue was appropriate in the nation’s capital.
“So the ‘what if’ game is considering if the DOJ would have reached a different bottom line had it known that the consequence of guessing wrong was not losing the case irrevocably,” Litman wrote in his thread. “That’s 100% sensible.”
The 37 criminal counts against Trump accuse the former president of violating the Espionage Act, making false statements, conspiring to obstruct justice and more. Though dubbed the Espionage Act, the 1917 statute shoots more broadly than at spies, punishing offenses regarding the mishandling, detention and disclosure of U.S. secrets. Trump has pleaded not guilty to offenses that he’s noted carry a possible 400-year prison term.
In reality, maximum sentences under that statute rarely reflect a defendant’s actual prison terms, if convicted. Even more rarely are dozens of maximum sentences dealt concurrently, making his actual exposure far lighter if a jury finds him guilty of the crimes charged.
Read the Supreme Court’s ruling here.
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