Two grand juries. One criminal case.
Was their dual use proper? Or did federal prosecutors working for Special Counsel Jack Smith somehow run afoul of the rules by using a pair of investigative panels in their classified documents case against Donald Trump?
That’s what the judge overseeing the case against the former president wants to know some two months after he was indicted in South Florida along with personal valet Waltine Nauta for allegedly mishandling sensitive papers and obstructing a federal investigation.
U.S. District Judge Aileen Cannon, of Fort Pierce, raised the question in a filing Monday in response to a government motion for a hearing on alleged conflicts of interest by the defense. She told Smith’s team to respond by Aug. 22 and invited defense lawyers to submit their views by Aug. 17.
“The response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district,” Cannon wrote.
The judge was referring to a grand jury in Washington, D.C., that initially became involved in the investigation in 2022. As the case progressed, it ended up before a Southern District of Florida grand jury in Miami, whose work led to the filing of charges in the district’s West Palm Beach division on June 8 of this year.
In their motion concerning a potential conflict by defense lawyers, it was the prosecutors who said they used the Washington grand jury to help look into activities that led to a superseding indictment against Trump, as well as a new defendant, Mar-a-Lago property manager Carlos De Oliveira.
“The grand jury in this district and a grand jury in the District of Columbia continued to investigate further obstructive activity, and a superseding indictment was returned on July 27, 2023,” prosecutors wrote.
The second indictment alleges that Trump and his employees sought to delete security footage at Mar-a-Lago — recordings that prosecutors sought as evidence to support their new obstruction charges.
Trump, who pleaded not guilty to a 37-count indictment in Miami in June, entered a not guilty plea to the new charges via a paper filing with the court last week. In doing so, he waived a personal court appearance scheduled for this Thursday in Fort Pierce.
Nauta, who also pleaded not guilty to charges in the original indictment, and De Oliveira, the new co-defendant in the case, are scheduled to be arraigned Thursday before a Fort Pierce federal magistrate.
Two former federal prosecutors and a law professor interviewed by the South Florida Sun Sentinel on Tuesday asserted they do not believe the government prosecutors violated any rules by making use of two grand juries.
“There is no issue,” said Robert Jarvis, a law professor at Nova Southeastern University in Davie. ”I had never heard of a judge raising it as an issue. Obviously prosecutors are entitled to use multiple grand juries and can empanel grand juries where they think the crime or part of the crime has occurred.”
Miami attorney Eduardo Palmer, a former federal prosecutor who won a conviction in the 1990s against co-defendants of Chilean cluster bomb maker Carlos Cardoen, said the Justice Department maintains guidelines for the use of grand juries.
“I’m confident Jack Smith and his team looked carefully at those policies and the applicable law and followed them,” he said.
The original indictment’s narrative offers a timeline of the investigation that shows it started in Washington at the behest of the National Archives and Records Administration, which waged a protracted effort to retrieve documents taken by Trump after he left the White House in January 2021.
A year later, the National Archives referred the matter to the Justice Department after finding boxes of papers returned by Trump from his Mar-al-Lago estate contained classified documents. In March 2022, the FBI opened its investigation and a month later, the original grand jury investigation began in Washington. A South Florida grand jury entered the picture later.
“The government is entitled to investigate where (the case) begins and where it ended,” said David Weinstein, a Miami lawyer who also served as a prosecutor in the Southern District of Florida and is a partner at the firm of Jones Walker.
He said grand juries in the nation’s 94 federal court districts last for 18 months unless their terms are extended for another six months.
If the work is not complete and the panel’s term is not extended, “you’re entitled to take all the testimony and present it to a grand jury in another district,” he said.
Cannon herself is a former federal prosecutor in Miami who was appointed to the bench by Trump and took office in 2020.
Last year, she came under heavy legal community criticism when she suggested Trump, who sued to challenge a court-approved FBI search of Mar-a-Lago in the documents case, was entitled to protections against a search warrant because he is a former president.
A panel of the conservative U.S. Court of Appeals for the 11th Circuit sharply rejected the proposition and said she lacked the authority to make such a ruling.
Weinstein declined to comment on Cannon’s motive for questioning the government’s use of two grand juries.
“Judges are entitled to question things,” he said.
But Jarvis suggested her impending inquiry might eventually trigger a prosecution effort to remove her from the documents case.
“It will be very interesting to see at some point if the government moves to recuse her and take it up to the 11th Circuit,” he said. ”That’s the thing I am waiting to see.”