By Tom Ozimek
Special Counsel Jack Smith has revealed in a recent court filing that the Washington grand jury in the classified documents case against former President Donald Trump has ended, after the judge challenged the special counsel over his use of an out-of-state grand jury.
While Mr. Smith empaneled a grand jury in Miami to indict President Trump in Florida, the special counsel was also using an out-of-state grand jury in Washington, possibly in hopes of adding charges in the case, which accuses the former president of inappropriately keeping national defense secrets at his Mar-a-Lago home.
Earlier in August, Florida-based federal Judge Aileen Cannon reprimanded Mr. Smith for his use of the Washington grand jury and demanded that he justify its use.
In an Aug. 7 order, Judge Cannon directed the DOJ to “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 imposed a deadline of Aug. 22 for the government to respond.
Mr. Smith’s Team Responds
The matter of the out-of-state grand jury was addressed by Mr. Smith’s team in a new filing (pdf) on Aug. 22, which indicates that its use has ended.
The DC grand jury “completed its term on August 17, 2023,” wrote David Harbach, one of Mr. Smith’s deputies, in the filing.
At the same time, Mr. Harbach defended the use of the DC grand jury alongside the one in Florida, arguing that a two-pronged approach was appropriate because there was alleged criminal conduct in both places that should be investigated.
“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,” Mr. Harbach wrote.
Mr. Harbach wrote in the filing that an employee of President Trump changed his testimony after getting a new lawyer and has admitted that he lied to the DC grand jury.
The employee had told a grand jury in March that he did not recall or did not have any conversations about security footage at President Trump’s resort in Florida, Mar-a-Lago, according to prosecutors.
“Immediately after receiving new counsel, Trump Employee 4 retracted his prior false testimony and provided information that implicated Nauta, De Oliveira, and Trump in efforts to delete security camera footage, as set forth in the superseding indictment,” per the filing.
Carlos De Oliveira, the 56-year-old property manager at Mr. Trump’s Florida estate, was added as a third defendant in the case, alongside the former president and his personal valet, Walt Nauta.
Mr. Smith’s team accused President Trump in a “superseding indictment” (pdf) filed in the case on July 27 of conspiring with his staff to delete some security footage so that the grand jury in the case would not see all the evidence. The former president has denied the charges.
President Trump now faces a total of 40 federal charges related to the documents that he possessed at his home at the Mar-a-Lago Club in Palm Beach.
‘Appropriate’ Use of DC Grand Jury?
Mr. Harbach said in the filing that Trump Employee 4 was told by prosecutors that he had become a target of an investigation into whether he lied to the DC grand jury before changing his testimony.
The filing also defends the use of the DC grand jury, saying that it was not used “for the primary purpose of strengthening its case” against the former president and his co-defendants, as some have alleged.
“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,” Mr. Harbach wrote.
A legal expert told The Epoch Times in an earlier interview that it’s unusual to use a grand jury in one jurisdiction to indict a defendant out of state.
Curt Levey, an attorney who is president of the Committee for Justice, a conservative legal advocacy nonprofit, said that he wasn’t aware of any federal statute that forbids the practice.
“Typically, the grand jury is in the same federal district where the case is going to be tried,” Mr. Levey said in an interview. “Certainly, the Constitution doesn’t require it.”
Even if the Justice Department has an internal policy precluding the practice, it isn’t clear that the department would follow it, he added.
“There’s also a DOJ policy that says ‘try not to indict people at a time when it will interfere in an election,’ and they didn’t seem to really follow that one,” Mr. Levey said.
Some experts have said that Mr. Smith’s use of a grand jury in the nation’s capital, where the available pool of jurors in the Democrat stronghold is considered largely hostile to the former Republican president, could present thorny problems when the matter is tried.
Matthew Vadum and Zachary Stieber contributed to this report.