This is an interesting wrinkle, explaining why perhaps Jack Smith has not charged him with disseminating documents in the Florida case.
A key question raised is whether charging in NJ could be viewed as “overcharging.” What is overcharging, exactly, and could it get any NJ charges dismissed, or merely criticized?
So my thought is this, what reason would there be delay that bit of the case and not charge everything together? I mean if Nauta (or anyone else who is still not cooperating) was going to flip he was would have flipped by now.
Would there be precedent to seeing how the case is going in Florida (e.g. whether Judge Cannon ends up presiding, etc.) and then filing the NJ charges if things don’t seem to be going so well for the prosecution?
There is also the complication of the sensitivity of the documents, if the documents that were taken to NJ were too sensitive to be released by the “three letter agency” they belong to.
That is my two-cents, they had absolutely rock-solid case in Florida, that is more than enough to send him to prison for life(I mean seriously, how often does the prosecutor have tape of the accused carrying out the crime he’s charged with, and admitting they knew it was a crime). Why go with the harder to prove case with documents that are a harder to use in court?
My understanding of overcharging is lawfully charging someone with a lot and different (but closely related) crimes for the same basic conduct. The charges would not get dismissed for that alone. It could be criticized.
I think this is accurate, but if not, it’s certainly illustrative: It’s a separate crime to (1) Take, (2) Retain, (3) Tell People about national defense information. Trump was charged with 31 counts of just retaining documents (and 6 related to covering it up). You could, lawfully, also charge Trump with taking the documents (from DC) and then later discussing them with other people in NJ.
You asked about NJ, but DC illustrates overcharging better: It might seem like “overcharging” to charge for both taking and retaining the same documents. Some might say you’re double dipping into the same facts/criminal conduct to gin up more/excessive charges. Like, if someone steals something and keeps that stolen object at their house, seems like charging with theft is appropriate/enough. Maybe you could separate it out and charge more, but that might appear like overcharging.
With that said, there could be a host of other issues that complicate this. For example, re: NJ, I’m not sure they have the document that was discussed in NJ; maybe Trump didn’t say/show enough specifics to anyone to prosecutions liking. re: taking in DC, he’s got full executive power and privilege up to a very specific date/time. I personally don’t know when he “took” the documents. If he was President, that’s probably not unlawful (or certainly more complicated) until the minute he is not President. Maybe those DC witnesses weren’t helpful, and Jack just had a better case with the Florida stuff and decided to keep it clean and narrow. To be honest, I have no idea.
Doesn’t it make sense (let’s forget about “What would be worse for Trump?” for a minute) to separate the charges by which venue, Florida or NJ, makes for a stronger case? If Trump did the vast majority of “document retention” in Florida, but did the majority of “document dissemination” in NJ, then doesn’t it make more sense to try each charge separately in the venue that is more relevant to that charge?
In a strict legal analysis, yes. That would be cleanest, but maybe not most practical. I believe it is possible to bring every conceivable charge related to this in just Florida (or just DC, or just NJ), and I can’t imagine Trump ever arguing against the Florida venue - it’s most favorable to him. But that did not happen for reasons unknown.
But for me personally, doing some in Florida (especially first and finding out the Judge), then later some in NJ, some in DC, feels like forum shopping (picking the most favorable venue to you), even though it would be the most (but not only) correct venue.
If the prosecution was to bring charges in another venue at this point, I’d expect a strong Defense argument they be transferred to Florida as Florida can be correct, it’s where this case is currently being tried, better to keep all this in one place, with one Judge, with one schedule, type of argument. That’s a good and normal argument.
I don’t see that there’s much for Smith to lose by going for a dissemination case in NJ. If it gets slapped down, well, he wasn’t going to try the dissemination part in Florida anyway, and if it doesn’t, he gets another shot at Trump in a friendlier venue.
But is it generally something that happens in federal cases? i.e. suspect indicted in state A for crime X, then at a later date is indicted by the same prosecutor in state B for closely related crime Y, that is part of the same criminal conspiracy as crime X.
Its not something I’ve heard of, but IANAL
I’m a lawyer, but that alone is not really helpful here so I don’t know.
I really just assumed the legal analysis I was reading about bringing additional charges in those different venues had been considered by the writer and was the correct way to do it. But they never explicitly said that. And for me personally, thinking about it more, it would seem odd/overreaching, and more importantly just less expeditious to have multiple cases going on around the country for basically the same criminal stuff. Keep it all in one place.
With that said, if they did bring charges in DC/NJ, I would imagine there would be more damning facts than are alleged in the Florida indictment (not just adding to the stuff we know, but new stuff altogether). Something that would ground it in NJ or DC outside of just the same document case stuff brought in Florida, and then also add in the document stuff. I’m not sure what that would be. Conspiracy, the taking/retaining/talking about, obstruction all relate to the same criminal activity to me. So something outside that. Maybe a more serious/classic espionage charge might make sense, but I’m mostly thinking a loud to myself at this point.
Disseminating Top Secret materials isn’t different from retaining it? Even if they’re the same materials–and it’s far from clear that they are–aren’t they completely distinct crimes, one committed in Florida, the other in New Jersey?
I’m pretty sure Trump’s lawyers would have screamed “VENUE!” if he’d tried to bring a case about an alleged crime in Florida that was exclusively committed in New Jersey.
So the article in the OP (and other stuff I’ve read online) says the glaring omission from the existing charges is anything related to dissemination even though there is apparently more than enough evidence for those changes, only charges related to retention have appeared. As that dissemination happened in Bedminster, it makes sense to charge it there.
Yes, taking/retaining/dissemination (telling others) are different crimes under the Espionage Act. They can all be charged separately. And those crimes can be committed in different locations. And while the indictment speaks to all those, Trump was only charged with retention crimes under the Espionage Act. I agree with that.
I just consider all that to be generally about the same basic conduct. From that basic conduct, you charge a person. Here, they investigated, gathered evidence that could prove their case beyond a reasonable doubt, and they charged with retention in Florida. That’s happened.
At this point…it would seem like piling on/forum shopping to now go add charges, based on the same basic conduct, in other venues. Just my opinion.
re: venue. If Jack had brought NJ conduct charges in Florida, I don’t think Trump would scream venue. If he did, and got that charged dismissed. It’s not a ruling on the merits, and would mean you just can’t bring it in that venue*. It would be transferred to NJ, or if dismissed, Jack would then just go file it in NJ, a venue unfavorable to Trump. For Trump, while he would prefer not to be charged with it anywhere, better to have it with Judge Cannon in Florida. *I’m certainly open to fact checking on a venue dismissal and what it means. Obviously, this isn’t really considering the court of public opinion of what a dismissal/re-file would look like.
Having said all that, maybe they are still investigating the NJ stuff more. Maybe they need more time before they think they can prove it beyond a reasonable doubt. That’s a little different. My opinion above is based on they have everything now, and choose not to bring it in Florida until after they found out who the Judge was.