For many months, Justice Department prosecutors questioned witnesses before a federal grand jury in Washington, D.C., about former president Donald Trump’s handling of classified documents after leaving the White House.
The secret proceedings yielded evidence of potential mishandling as well as obstruction of justice, people familiar with the investigation have said, making the federal courthouse in the nation’s capital the focal point of a waiting game: Would Trump be the first former president indicted by the Justice Department?
In early May, the parade of witnesses to that grand jury appeared to stop. It turns out, however, that witnesses were still being called — to a federal courthouse a thousand miles south, in Miami. That courthouse is much closer to Mar-a-Lago, Trump’s Florida home and private club, where most of the alleged conduct under scrutiny took place.
People familiar with the matter said Wednesday that special counsel Jack Smith and his team are preparing to bring the bulk of any charges in the case in South Florida rather than Washington. They spoke on the condition of anonymity to discuss an ongoing criminal investigation.
The switch comes amid clear signs that the investigation is nearly completed and that Trump could face criminal charges. Former prosecutors said it reflects an effort by the Justice Department to prevent Trump’s lawyers from challenging an indictment by saying it had been filed in the wrong place — a legal line of attack that could delay or even derail a trial.
Brandon L. Van Grack, a former federal prosecutor who now chairs the national security and crisis management practices at Morrison Foerster, said there would be substantial legal risks to bringing Trump documents case charges in D.C., since most of the conduct being examined happened in South Florida.
A decision to switch grand juries “would indicate they thought [the challenges in D.C.] were insurmountable,” Van Grack said.
That legal analysis does not bar Smith from bringing some Mar-a-Lago-related charges in the nation’s capital, particularly if officials decide one or more witnesses lied to a federal grand jury here.
The decision on where to potentially file charges against the former president has significant ramifications. Any courthouse where such a trial would be held would immediately become the focus of intense public interest and security concerns. Legal experts said moving a potential prosecution to Florida could avoid a time-consuming legal fight over the venue.
In terms of the pool of potential jurors, the move could be beneficial to Trump, who is again running for president, seeking the Republican nomination in 2024. Conservatives and defense lawyers have argued that the spate of trials stemming from the Jan. 6, 2021, Capitol riot have shown that District residents tend to take a harsh view of Trump and his supporters, and he might find a more sympathetic jury in Florida. Trump won 5 percent of the vote in D.C. in the 2020 election, compared with about 45 percent in Miami-Dade and Palm Beach counties.
The former president’s aides have been increasingly vocal in predicting that he soon will be indicted in the documents investigation — just months after he was charged with falsifying business records in an unrelated case in New York.
A former Trump spokesman testified to the Miami grand jury Wednesday, and on Thursday a senior prosecutor on Smith’s team was seen at the Miami courthouse. On Monday, Trump’s lawyers met with the special counsel and a senior Justice Department career attorney to argue that their client should not be charged. Such meetings typically come at the end of an investigation, when prosecutors are mulling whether to seek an indictment.
The meeting followed a letter formally notifying Trump that he was a target of the investigation, according to people familiar with the matter, who also spoke on the condition of anonymity to discuss private communications. A target letter from prosecutors does not mean the recipient definitely will be charged, only that he or she might be. Such letters often invite the target to appear before a grand jury.
In Trump’s case, it was clear he has been under investigation since at least Aug. 8 of last year, when FBI agents with a court order searched Mar-a-Lago and found 103 classified documents, even after his lawyers claimed to have conducted a diligent search two months earlier and turned over everything they could find.
Former prosecutors said the timing of the move from Washington to Florida was somewhat surprising, given how much of the investigation has been conducted in D.C., but there could be nonpublic facts that tilt the venue scales southward.
“You don’t know all of the facts that would determine venue until you’re further advanced in an investigation,” said Van Grack, the former federal prosecutor. “As far as why now, it’s a sign they have largely completed their investigation, and they’re able to make determinations like venue in a way they weren’t able to eight or 10 months ago.”
The Constitution and a host of U.S. court rulings have long held that trials should be held, when possible, near the scene of the alleged crime.
A major guidepost for Washington cases is a 1971 appellate court decision involving a rape and subsequent shooting. In that case, a man named John Swann was accused of raping a woman in Washington. After the charges were filed, he went to her workplace in Maryland and shot her. Initially, Swann was charged in D.C. for the shooting, on the basis that he was trying to attack a witness in his rape case. But higher courts later held that he had to be charged with the shooting in Maryland, even if the crime was done to target a witness in his case in the nation’s capital.
The Justice Department’s website notes that where the criminal offense “is of a continuing nature, venue is proper in any district where the acts constituting the offense were begun, continued or completed,” which allows some leeway for prosecutors.
But the potential consequences for picking the wrong venue can be severe — the entire case can be thrown out if a judge decides it was filed in the wrong place.