by Mark Sumner for
Daily Kos
Daily Kos Staff
Wednesday, June 07, 2023 at 11:22:19a PDT
https://www.dailykos.com/stories/20...tea-leaves-on-Jack-Smith-s-next-move#comments
Special counsel Jack Smith was appointed on Nov. 18, 2022. Within the next two weeks, Smith had assembled a team of nearly two dozen federal prosecutors. Before the end of the month, Smith had empaneled two federal grand juries—one to hear testimony concerning Donald Trump’s actions in connection to the 2020 election, the second for the investigation into Trump’s handling of classified documents. Before November was out, dozens of subpoenas for testimony before those grand juries had already been delivered.
More than two years after Trump left office, it’s easy to be upset about the speed with which federal authorities have moved to hold him responsible for his numerous and apparently obvious crimes. It’s much harder to be upset with Smith, who in seven months has conducted what appears to be a wide-ranging investigation into everything from Trump’s schemes to
replace the attorney general with someone more coup-friendly, to claims that security video at Mar-a-Lago was lost because
someone drained the swimming pool.
One of Smith’s two grand juries, the one hearing the classified documents case, went into a reported hiatus earlier this month after hearing testimony from dozens, if not hundreds, of witnesses, ranging from former White House chief of staff Mark Meadows to 20 members of Trump’s Secret Service security detail. Many observers regarded this as a sign that Smith was preparing to either issue indictments or make a statement that the investigation had not led to findings that could be charged. And considering the wealth of public evidence about how Trump hid documents, stonewalled investigators, and bragged about showing off classified information, the odds of indictment seemed very high.
But now something has happened that no one was predicting: Smith has created grand jury number three.
On Saturday,
NBC News first reported that a new grand jury had been empaneled in Florida. While that report made the action seem like a continuation of the testimony before the Washington, D.C., jury hearing evidence on the classified document case, it raised the central concern about this new development.
It’s unclear how the testimony expected in Florida will affect the grand jury that has been investigating in Washington or whether prosecutors are prepared to seek an indictment in either jurisdiction.
It now appears this grand jury has been hearing testimony for at least a month. However, it has heard from many fewer witnesses, and apparently none of the high-profile names that attended the court in Washington.
Looking at the possibilities raised by Smith’s creation of this third jury,
The New York Times projects three possible meanings:
- The Florida jury is hearing additional evidence from local witnesses rather than requiring those witnesses to fly to Washington, D.C. The Times appears to consider this a low-probability option, but it might make sense if there were something Smith needed from workers at Mar-a-Lago or at some other location in the state.
- Trump, along with possibly some high-ranking members of his staff, might be indicted in Washington, D.C., while others—such as staff members involved in moving classified documents from a storage room where they had been kept in an arrangement with the FBI—might be indicted in Florida.
- Smith has decided to move his entire case to Florida after determining that there was some undetermined issue with the Washington, D.C., venue, a move that might argue against an indictment of Trump since it appears to dump months of testimony from Meadows, those Secret Service agents, and hundreds of others who are unlikely to be called again before the Florida jury.
Worryingly, the Times article suggests that the “some indictments in D.C., other indictments in Florida” scenario is more likely if the D.C. jury is still active. But whether that grand jury is active, on hiatus, or just plain over has yet to be confirmed.
While every article is quick to remind readers that Smith and his prosecutors have far more information than what has leaked to the public, it’s genuinely difficult to see how Trump could
not be charged at this point. The two instructions given to Smith by Attorney General Merrick Garland were that he look at whether Trump wrongfully retained classified documents after he left the White House, and whether he obstructed lawful efforts to retrieve those documents.
The answer to both these questions is a resounding “yes.” Even from the relatively small amount of information available to the public, it’s clear that Trump took documents he knew to be highly classified, that he lied to both the National Archives and FBI about holding these documents, that he bragged about showing classified documents to others, that he violated agreements to hand over documents, and that he made repeated false claims about having declassified documents. It seems impossible that Smith’s team would have any additional knowledge that somehow makes all this less than indictable.
Some clue about what’s going on may be gleaned from looking at who is appearing before the Florida jury.
CNN reports that one of those called to testify is former Trump spokesperson Taylor Budowich.
In addition to having previously held a position as Trump’s communications director, Budowich is the founder and operator of a political action committee called “
MAGA Inc.” That PAC, formed just weeks before the 2020 election, stepped in at the last minute to reportedly “supersede Trump’s existing super PAC.” In those fading weeks of the campaign, MAGA Inc. was the recipient of some rather odd transfers of funds. That includes getting
$32 million from other Trump PACs just before the election. It reported spending $12 million in the run up to the election, with most of that aimed at promoting Senate candidates supported by Trump.
Currently, it seems that the Florida jury may have heard from no more than two other witnesses, and the appearance of Budowich brings in another possibility that doesn’t seem to be among the options so far mentioned. The Florida grand jury might not be about the classified documents at all, but about something that surfaced during Trump’s other two investigations.
The Florida jury might be hearing testimony on how Trump scammed his supporters, both by false claims about the election, and by false claims about the investigations. That would mean that Smith convened a third grand jury to hear testimony in what is essentially a third case, one that has connections to his other two investigations, but one that also has a different set of potential witnesses, charges, and defendants.
Back in April,
The Washington Post reported Smith had issued a series of subpoenas “focused on money raised during the period between Nov. 3, 2020, and the end of Trump’s time in office on Jan. 20, 2021.” They called this the “fundraising prong” of Smith’s investigation and speculated on charges of felony fraud. However, if this investigation bore fruit, it makes absolute sense that Smith would want to separate that investigation from those into the classified documents and attempt to overturn the 2020 election.
The best explanation for Smith’s third jury may be that it’s a third case. It’s not a substitute for either of the Washington juries. Just the fact that Budowich was called shows this is something altogether different from the charges Smith was looking into in those two investigations.
Note that this idea doesn’t mesh with that of some very smart and legally savvy people like
Marcy Wheeler, who connects the Florida jury and the classified documents case through Budowich being Trump’s spokesperson at the time he issued some pretty obvious lies about his actions in that case. Betting against Marcy is never a great idea on any kind of legal issue.
But unless Smith has decided that there is some sort of venue issue that requires the document case to be heard in Florida, it’s hard to see how this works. And if that’s the case, and what we’re going to get now is a redo of the testimony heard over the last seven months, it’s hard to see starting with Budowich.
If Smith would only get on with indicting Trump, maybe we can learn something. He can start with case number one, or case number two, or case number three. But he needs to get out the cuffs. Soon.
