Two years ago, when special counsel Jack Smith brought the classified documents case against Donald Trump in Florida instead of Washington, D.C., I explained that it was likely due to the importance of something called venue, the legal requirement that prosecutors bring cases where the alleged crime occurred. It’s legally irrelevant whether prosecutors think they have a better chance at getting a conviction in one federal district over another, or if they’re worried about drawing a bad judge in a particular federal district.
As we know, Smith drew U.S. District Judge Aileen Cannon, who predictably handled the case in bizarre ways that favored Trump (who appointed her to the bench). She ultimately dismissed the case on the questionable ground of Smith being unlawfully appointed.
We now have notable new reporting from MSNBC’s Carol Leonnig on internal dissension within Smith’s prosecutorial team over the geographical move. “Smith’s decision to bring the documents case in Florida, rooted in an extensive internal legal analysis, ran counter to what [federal prosecutor David] Raskin and others believed was the surer path to a conviction: charging Trump in D.C.,” reported Leonnig and co-author Aaron Davis in The Washington Post on Monday, based on interviews for their new book, “Injustice.”
They reported: “Whether the law favored going to Florida or not, Raskin told teammates, they first had to ensure their case had the best chance of being heard by someone impartial. Given what the prosecution team saw as her track record of disregarding precedent, Cannon getting the case was too enormous a risk to ignore, he said.”
Cannon getting the case did turn out to be a risk, to say the least. But it wasn’t really a question of “Did the special counsel want Cannon or not?” (obviously not) but rather “What does the law require?” On that score, Leonnig and Davis report that Smith and then-Attorney General Merrick Garland (who appointed Smith) “were convinced the legal analysis showed the best case was in Florida.”
Given Cannon’s handling of the case and the looming question throughout her assignment of whether Smith could force her out, Leonnig and Davis’ reporting is further notable in relaying that Smith pitched the idea of seeking Cannon’s removal to then-Solicitor General Elizabeth Prelogar (like Garland, appointed by former President Joe Biden), who approved Smith’s plan to appeal Cannon’s dismissal of the case but rejected his bid to seek her removal.
That decision by Prelogar is not surprising. As I explained at the time, it would be more challenging than it might seem to remove Cannon from the case. Third parties weighed in at the federal appeals court seeking Cannon’s removal, so the issue was presented to the appellate court in Smith’s appeal. In any event, he withdrew the appeal of Cannon’s dismissal order after Trump won the 2024 presidential election, citing Justice Department policy against prosecuting sitting presidents. We don’t know how the case would have turned out if Smith had brought it in Washington instead of Florida. He likely would have drawn a judge who would’ve let the case proceed more typically, though that shakier venue in D.C. could’ve given Trump a legal avenue to attack the case, so it could’ve been for naught. It wasn’t for a lack of aggression on Smith’s part, if that aggression would’ve been the legal equivalent of speeding off a cliff. At any rate, both that choice of venue and the broader Biden DOJ’s decision not to press for Cannon’s removal bolster the rule of law and the values that Trump and his DOJ have been busy trashing while claiming “weaponization” of the law by the prior administration. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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