Special Counsel Smith's team asserts end of D.C. grand jury in Trump documents case after being called out by Florida judge

 August 26, 2023

Earlier in August, the South Florida federal judge overseeing former President Donald Trump's prosecution over his retention of government documents after leaving the White House appeared to call out Special Counsel Jack Smith for his continued use of an out-of-district grand jury in Washington D.C.

In a court filing this week, one of the special counsel's prosecutors acknowledged that the D.C. grand jury had concluded its term even as he defended the questionable use of that D.C. grand jury in the Florida-based case, according to The Epoch Times.

While the use of a federal grand jury in a district different from where charges are filed may not be illegal, per se, it is viewed by some as unethical and dirty in that prosecutors are typically constrained to only make use of a grand jury in the district or venue where charges are filed and a case will be tried.

Called out in a court order

The matter initially came to a head in an August 7 order issued by District Judge Aileen Cannon in regard to a special counsel request for what is known as a Garcia hearing to determine if there were "potential conflicts of interests" involving the defense attorney for Trump's co-defendant Walt Nauta, Stanley Woodward, in that he also previously represented a potential witness who may testify against Nauta at trial.

In that order, Judge Cannon set a date of August 17 for Nauta's attorney to respond to the request, and wrote, "Among other topics as raised in the Motion, 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."

She also instructed the special counsel's team to file its own response to the questionable use of an out-of-district grand jury no later than August 22.

The special counsel team responds

On August 22, one of the special counsel's deputy prosecutors, David Harbach, filed the response as instructed, and wrote, "As set forth below, following the indictment in this case, the Government continued to investigate false statements by two witnesses in the District of Columbia, and the hearing before the Chief Judge in the District of Columbia appropriately stemmed from that investigation. The Government promptly notified this Court of its request for that hearing, and Mr. Woodward participated in the hearing without objection."

The filing proceeded to explain how the documents case had initially originated with the D.C. grand jury and revealed that an individual identified only as "Trump Employee 4" had first delivered false testimony to that grand jury before eventually recanting his prior statements and providing incriminating evidence against Nauta, Trump, and others -- after being persuaded to ditch Woodward as his attorney in favor of a federal public defender.

That, of course, explains the request for a hearing on Woodward's potential conflicts of interest, in that he may have to cross-examine his prior client if and when he testifies during the trial against the attorney's current client, Nauta. As for the continued use of the D.C. grand jury after criminal charges had already been filed in the case by the South Florida grand jury, the prosecutor argued that doing so was "entirely proper" and justified.

"Following the indictment in this district, it was appropriate to use the grand jury in the District of Columbia to investigate false statements by Trump Employee 4 and De Oliveira," he wrote of the property manager of Trump's Mar-a-Lago resort who is alleged to have conspired to delete subpoenaed security camera footage. "Neither individual was named in the indictment against Nauta and Trump, and venue for charges based upon their false statements in the District of Columbia would lie only in that district."

The prosecutor later reiterated that "Not only was it appropriate to use the grand jury to investigate false statements by Trump Employee 4 and De Oliveira, it was appropriate to use the grand jury in the District of Columbia, where the statements were made and where venue for any false-statement charges would be proper."

End of D.C. grand jury acknowledged in footnote

Interestingly enough, that filing also included a lengthy footnote that further elaborated on why Nauta and his attorney Woodward were incorrect to assert that the continued use of the D.C. grand jury was improper but also insisted that the D.C. grand jury was no longer empaneled and in use by the special counsel.

"When the Government started the grand jury investigation in the District of Columbia, it could not know the full scope of the evidence that would be gathered, but from the outset, the investigation encompassed conduct that spanned the District of Columbia and the Southern District of Florida, and the investigation uncovered evidence of federal offenses in both districts," the footnote stated.

"The Government’s decision to ultimately bring charges in the Southern District of Florida and not in the District of Columbia does not call into question either grand jury’s investigation," it added. "The Government notes that the grand jury in the District of Columbia completed its term on August 17, 2023."

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