Image: Felix Mizioznikov, iStockPhoto
Image: Felix Mizioznikov, iStockPhoto
There are a few issues that complicate the constitutional mandate that a crime should be prosecuted where it was allegedly committed. One is that a crime may be committed in more than one district.
Special Counsel Jack Smith may have wished he could indict and try former president Donald Trump in Washington, D.C., where Trump is disliked, rather than in southern Florida, where Trump is popular.
But based on my experience as a scholar of criminal law and procedure, as well as my time practicing criminal law, I believe that under the Constitution—and under the circumstances—Smith had little choice but to prosecute Trump in Florida.
The federal prosecution of Trump for retaining and concealing government documents is specifically pending in the Southern District of Florida, where Mar-a-Lago, Trump’s estate and golf club, is located.
Aileen M. Cannon, the federal judge presiding over the case, announced on June 20, 2023, that the trial could begin as soon as Aug. 14.
The Constitution requires that a trial must be “held in the State where the said Crimes shall have been committed” and that a defendant is entitled to an “impartial jury of the State and district wherein the crime shall have been committed.”
This means that the so-called “venue” for a federal prosecution is the district where the alleged crime was committed.
Congress is responsible for drawing district lines in states. In some states, like Massachusetts and North Dakota, the borders of the district are identical to the borders of the state. Other states have more than one federal judicial district; Florida has three. Accordingly, U.S. district judges in Florida hear cases only from part of the state.
It is important for the prosecution to choose the proper venue. When a defendant objects to the venue, a judge may dismiss the case. And if the jury finds that a crime was not actually committed in the district, they are instructed to render a “not guilty” verdict, ending the case permanently.
Across State Lines
There are a few issues that complicate the constitutional mandate that a crime should be prosecuted where it was allegedly committed.
One is that a crime may be committed in more than one district.
Methamphetamine may be made in Arizona and sold in New Mexico, for example. A fraud victim may be deceived in Alabama, but yet wire their money to Mississippi. The law does not insist that there is one and only one permissible venue for a federal prosecution.
Instead, the U.S. Code says that a federal offense “may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.”
Prosecutors are alleging that Trump’s criminal activity took place in both Florida and Washington.
The federal indictment charges Trump with unlawful retention of national defense information, beginning on Jan. 20, 2021. This date was Trump’s last day in office as president, and at which time he was in Washington.
Although Trump, his staff and his boxes of documents later relocated to the Southern District of Florida, this is a classic allegation of a crime which was “begun” in one district even if it “continued” in another.
So, the U.S. District Court for the District of Columbia could have been the place to charge Trump with most of these felony charges.
Other Charges
However, Trump and his aide Waltine Nauta are also charged with conspiracy, false statements and other offenses related to hiding their allegedly unlawful retention of government documents.
The government alleges that these offenses began “on or about May 11, 2022.”
From the indictment, it appears that Trump, Nauta and the documents were at Mar-a-Lago around this time.
Trump, through his lawyers, also allegedly gave false statements to government investigators in Florida.
So, for the felony counts that address these particular crimes—as specified in Counts 32 through 38—the Southern District of Florida appears to be the only proper venue.
Perhaps prosecutors could have made the argument that there was some connection to the District of Columbia and that they should place Trump on trial there.
It may well be, for example, that some of Trump’s lawyers—several are mentioned, but not named, in the indictment—were located, made calls or sent emails to government officials in the District of Columbia as part of the alleged criminal activity.
But if the Justice Department brought Counts 32 through 38 in the District of Columbia, the trial judge might have granted a defense motion to dismiss based on lack of venue, among other potential challenges.
Forum Shopping
The Department of Justice could have alternatively brought Counts 1 through 31 in the District of Columbia and then pursued the other felonies in Florida.
However, I believe that would have looked like brazen forum shopping, meaning trying to secure a court that would likely be friendly to the prosecution. It is unusual for the Department of Justice to divide criminal charges that way, and forum shopping is generally discouraged.
Someone retaining national defense-related documents has committed no crime if it was accidental or mistaken. It violates the law only if it was “willful.”
So, all of the felony charges in Trump’s case are connected.
In order to show that Trump wrongfully retained the documents, the government will want to show the jury that Trump and his allies lied and intentionally concealed the items. Accordingly, it makes sense for all of the counts to be tried together.
Trump has pleaded not guilty to the alleged crimes, and the judge probably would agree with prosecutors that the trial should be taking place in Florida. Bringing the charges in any other district might well have delayed or even destroyed the case. And I believe that a potential conviction in the Southern District of Florida would have more public credibility because of Trump’s popularity there.
Gabriel J. Chin, Edward L. Barrett Jr. Chair & Martin Luther King Jr. Professor of Law, University of California, Davis
This article is republished from The Conversation under a Creative Commons license. Read the original article.
The Conversation is a nonprofit, independent news organization dedicated to unlocking the knowledge of experts for the public good. We publish trustworthy and informative articles written by academic experts for the general public and edited by our team of journalists.
Help Support Factkeepers!
{"id":null,"mode":"form","open_style":"in_place","currency_code":"USD","currency_symbol":"$","currency_type":"decimal","blank_flag_url":"https:\/\/factkeepers.com\/wp-content\/plugins\/tip-jar-wp\/\/assets\/images\/flags\/blank.gif","flag_sprite_url":"https:\/\/factkeepers.com\/wp-content\/plugins\/tip-jar-wp\/\/assets\/images\/flags\/flags.png","default_amount":500,"top_media_type":"none","featured_image_url":false,"featured_embed":"","header_media":null,"file_download_attachment_data":null,"recurring_options_enabled":true,"recurring_options":{"never":{"selected":true,"after_output":"One time only"},"weekly":{"selected":false,"after_output":"Every week"},"monthly":{"selected":false,"after_output":"Every month"},"yearly":{"selected":false,"after_output":"Every year"}},"strings":{"current_user_email":"","current_user_name":"","link_text":"Leave a tip","complete_payment_button_error_text":"Check info and try again","payment_verb":"Pay","payment_request_label":"Factkeepers.com","form_has_an_error":"Please check and fix the errors above","general_server_error":"Something isn't working right at the moment. Please try again.","form_title":"Help Support Factkeepers","form_subtitle":null,"currency_search_text":"Country or Currency here","other_payment_option":"Other payment option","manage_payments_button_text":"Manage your payments","thank_you_message":"Thank you for being a supporter!","payment_confirmation_title":"Factkeepers.com","receipt_title":"Your Receipt","print_receipt":"Print Receipt","email_receipt":"Email Receipt","email_receipt_sending":"Sending receipt...","email_receipt_success":"Email receipt successfully sent","email_receipt_failed":"Email receipt failed to send. Please try again.","receipt_payee":"Paid to","receipt_statement_descriptor":"This will show up on your statement as","receipt_date":"Date","receipt_transaction_id":"Transaction ID","receipt_transaction_amount":"Amount","refund_payer":"Refund from","login":"Log in to manage your payments","manage_payments":"Manage Payments","transactions_title":"Your Transactions","transaction_title":"Transaction Receipt","transaction_period":"Plan Period","arrangements_title":"Your Plans","arrangement_title":"Manage Plan","arrangement_details":"Plan Details","arrangement_id_title":"Plan ID","arrangement_payment_method_title":"Payment Method","arrangement_amount_title":"Plan Amount","arrangement_renewal_title":"Next renewal date","arrangement_action_cancel":"Cancel Plan","arrangement_action_cant_cancel":"Cancelling is currently not available.","arrangement_action_cancel_double":"Are you sure you'd like to cancel?","arrangement_cancelling":"Cancelling Plan...","arrangement_cancelled":"Plan Cancelled","arrangement_failed_to_cancel":"Failed to cancel plan","back_to_plans":"\u2190 Back to Plans","update_payment_method_verb":"Update","sca_auth_description":"Your have a pending renewal payment which requires authorization.","sca_auth_verb":"Authorize renewal payment","sca_authing_verb":"Authorizing payment","sca_authed_verb":"Payment successfully authorized!","sca_auth_failed":"Unable to authorize! Please try again.","login_button_text":"Log in","login_form_has_an_error":"Please check and fix the errors above","uppercase_search":"Search","lowercase_search":"search","uppercase_page":"Page","lowercase_page":"page","uppercase_items":"Items","lowercase_items":"items","uppercase_per":"Per","lowercase_per":"per","uppercase_of":"Of","lowercase_of":"of","back":"Back to plans","zip_code_placeholder":"Zip\/Postal Code","download_file_button_text":"Download File","input_field_instructions":{"tip_amount":{"placeholder_text":"How much would you like to donate? You can change this amount to anything you would like.","initial":{"instruction_type":"normal","instruction_message":"How much would you like to donate? You can change this amount to anything you would like."},"empty":{"instruction_type":"error","instruction_message":"How much would you like to donate? You can change this amount to anything you would like."},"invalid_curency":{"instruction_type":"error","instruction_message":"How much would you like to donate? You can change this amount to anything you would like."}},"recurring":{"placeholder_text":"Recurring","initial":{"instruction_type":"normal","instruction_message":"How often would you like to donate this?"},"success":{"instruction_type":"success","instruction_message":"How often would you like to donate this?"},"empty":{"instruction_type":"error","instruction_message":"How often would you like to donate this?"}},"name":{"placeholder_text":"Name on Credit Card","initial":{"instruction_type":"normal","instruction_message":"Enter the name on your card."},"success":{"instruction_type":"success","instruction_message":"Enter the name on your card."},"empty":{"instruction_type":"error","instruction_message":"Please enter the name on your card."}},"privacy_policy":{"terms_title":"Terms and conditions","terms_body":null,"terms_show_text":"View Terms","terms_hide_text":"Hide Terms","initial":{"instruction_type":"normal","instruction_message":"I agree to the terms."},"unchecked":{"instruction_type":"error","instruction_message":"Please agree to the terms."},"checked":{"instruction_type":"success","instruction_message":"I agree to the terms."}},"email":{"placeholder_text":"Your email address","initial":{"instruction_type":"normal","instruction_message":"Enter your email address"},"success":{"instruction_type":"success","instruction_message":"Enter your email address"},"blank":{"instruction_type":"error","instruction_message":"Enter your email address"},"not_an_email_address":{"instruction_type":"error","instruction_message":"Make sure you have entered a valid email address"}},"note_with_tip":{"placeholder_text":"Your note here...","initial":{"instruction_type":"normal","instruction_message":"Attach a note to your tip (optional)"},"empty":{"instruction_type":"normal","instruction_message":"Attach a note to your tip (optional)"},"not_empty_initial":{"instruction_type":"normal","instruction_message":"Attach a note to your tip (optional)"},"saving":{"instruction_type":"normal","instruction_message":"Saving note..."},"success":{"instruction_type":"success","instruction_message":"Note successfully saved!"},"error":{"instruction_type":"error","instruction_message":"Unable to save note note at this time. Please try again."}},"email_for_login_code":{"placeholder_text":"Your email address","initial":{"instruction_type":"normal","instruction_message":"Enter your email to log in."},"success":{"instruction_type":"success","instruction_message":"Enter your email to log in."},"blank":{"instruction_type":"error","instruction_message":"Enter your email to log in."},"empty":{"instruction_type":"error","instruction_message":"Enter your email to log in."}},"login_code":{"initial":{"instruction_type":"normal","instruction_message":"Check your email and enter the login code."},"success":{"instruction_type":"success","instruction_message":"Check your email and enter the login code."},"blank":{"instruction_type":"error","instruction_message":"Check your email and enter the login code."},"empty":{"instruction_type":"error","instruction_message":"Check your email and enter the login code."}},"stripe_all_in_one":{"initial":{"instruction_type":"normal","instruction_message":"Enter your credit card details here."},"empty":{"instruction_type":"error","instruction_message":"Enter your credit card details here."},"success":{"instruction_type":"normal","instruction_message":"Enter your credit card details here."},"invalid_number":{"instruction_type":"error","instruction_message":"The card number is not a valid credit card number."},"invalid_expiry_month":{"instruction_type":"error","instruction_message":"The card's expiration month is invalid."},"invalid_expiry_year":{"instruction_type":"error","instruction_message":"The card's expiration year is invalid."},"invalid_cvc":{"instruction_type":"error","instruction_message":"The card's security code is invalid."},"incorrect_number":{"instruction_type":"error","instruction_message":"The card number is incorrect."},"incomplete_number":{"instruction_type":"error","instruction_message":"The card number is incomplete."},"incomplete_cvc":{"instruction_type":"error","instruction_message":"The card's security code is incomplete."},"incomplete_expiry":{"instruction_type":"error","instruction_message":"The card's expiration date is incomplete."},"incomplete_zip":{"instruction_type":"error","instruction_message":"The card's zip code is incomplete."},"expired_card":{"instruction_type":"error","instruction_message":"The card has expired."},"incorrect_cvc":{"instruction_type":"error","instruction_message":"The card's security code is incorrect."},"incorrect_zip":{"instruction_type":"error","instruction_message":"The card's zip code failed validation."},"invalid_expiry_year_past":{"instruction_type":"error","instruction_message":"The card's expiration year is in the past"},"card_declined":{"instruction_type":"error","instruction_message":"The card was declined."},"missing":{"instruction_type":"error","instruction_message":"There is no card on a customer that is being charged."},"processing_error":{"instruction_type":"error","instruction_message":"An error occurred while processing the card."},"invalid_request_error":{"instruction_type":"error","instruction_message":"Unable to process this payment, please try again or use alternative method."},"invalid_sofort_country":{"instruction_type":"error","instruction_message":"The billing country is not accepted by SOFORT. Please try another country."}}}},"fetched_oembed_html":false}
{"date_format":"F j, Y","time_format":"g:i a","wordpress_permalink_only":"https:\/\/factkeepers.com\/the-trump-trial-why-prosecutors-chose-south-florida\/","all_default_visual_states":"inherit","modal_visual_state":false,"user_is_logged_in":false,"stripe_api_key":"pk_live_40P3DgGDAHEP1QtJ0nOU4nms5JYHI8GbQ05dYiB1S8OPP5oMSIpOCCeeIawOyeW6bWDkDMWdUeggbhxOQTSA6aedu00ROAbhXBd","stripe_account_country_code":"US","setup_link":"https:\/\/factkeepers.com\/wp-admin\/admin.php?page=tip-jar-wp&mpwpadmin1=welcome&mpwpadmin_lightbox=do_wizard_health_check","close_button_url":"https:\/\/factkeepers.com\/wp-content\/plugins\/tip-jar-wp\/\/assets\/images\/closebtn.png"}
