Judge Asks Why Special Counsel Jack Smith Has Two Grand Juries Investigating Trump in Docs Case  Story by Adam Klasfeld •2h

Judge Aileen Cannon questioning the “propriety” of a D.C. grand jury’s role in the classified documents case puzzled legal experts

A Donald Trump-appointed federal judge is pressing Special Counsel Jack Smith about the dual nature of his classified documents investigation into the former president.

The questions are buried toward the end of a two-page order that U.S. District Judge Aileen Cannon issued Monday — but they have potentially heavy implications, signaling that she could be taking an attack on the indictment seriously.

“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,” Cannon wrote.

Smith began his probe in Washington, D.C., before charging it in the Southern District of Florida, but those lines haven’t always been brightly delineated. In a July hearing, an attorney for Trump’s personal valet and co-defendant Walt Nauta indicated that he may accuse the government of abusing the grand jury process.
‘Unorthodox’ logic

With Cannon bringing the issue to a head, some legal experts have questioned whether the controversy has any substance.

“I don't even understand the theory that there's some impropriety here,” remarked Adam Unikowsky, a partner at the white-shoe law firm Jenner & Block.

The Federal Rules of Criminal Procedure expressly state: “An attorney for the government may disclose any grand-jury matter to another federal grand jury.”

Citing the rule, Unikowsky said of Cannon raising the issue: “I would call it unorthodox.”

Attorney David Weinstein, a former federal prosecutor with extensive experience in the Southern District of Florida, also noted that the government said that both grand juries were investigating “obstructive activity.”

“The government is entitled to continue to investigate what they believe is criminal activity because there may be information that supports the return of a superseding indictment,” Weinstein told The Messenger.

That’s exactly what happened in the Southern District of Florida, where Smith’s office brought a new obstruction charge against Trump, Nauta, and a new co-defendant, Carlos De Oliveira, over an alleged plot to delete surveillance camera footage. Over in Washington, D.C., Trump also has been charged with “obstructive activity” — namely, obstructing an official proceeding and a related conspiracy count in connection with his attempt to thwart the certification of Joe Biden’s electoral victory.

Walt Nauta, valet to former U.S. President Donald Trump and a co-defendant in federal charges filed against Trump leaves the James Lawrence King Federal Justice Building on July 6, 2023 in Miami, Florida. Alon Skuy/Getty Images© Provided by The Messenger

Former Harvard Law professor Laurence Tribe was even more blunt.

“If Judge Cannon thinks raising silly questions about Smith’s use of a DC grand jury to uncover more facts related to Mar-a-Lago helps Trump by denying the Florida trial, she’s wrong,” Tribe tweeted.
‘An Open Docket’

Equally puzzling to some legal experts is that Judge Cannon made her inquiry inside an order denying the government’s motion to seal certain grand jury information.

Prosecutors wanted to privately share certain information about Woodward, who represents Nauta and at least seven people questioned in the documents case. At least three of these attorney-client relationships pose potential conflicts of interest, prosecutors say.

Smith’s office offered their proposed sealed filings to share grand jury material about those witnesses with the judge, but Cannon rejected that maneuver, finding that prosecutors did not prove their need for secrecy. Some legal experts found it appropriate that a federal judge would hold the government to an exacting standard before keeping any information from the public.

“Our court system operates on an open docket,” noted Weinstein, the former federal prosecutor.

Citing the unique circumstances of the government’s motion here, Unikowsky found the denial “weird.” He noted that prosecutors offered the information in order to help protect Nauta’s constitutional rights to conflict-free counsel.

“By denying the motion to seal, she's striking these filings from the docket, which means it's as if they were never filed, but the parties can't refer to them because they're not even on the docket anymore,” Unikowsky said. “And so she's like disabling the parties and the court from having full information about these witnesses and potential conflicts.”

Even Cannon’s most obscure orders have been under intense scrutiny, in light of her history with the case.

“She has ruled in his favor, and she has issued rulings that the Court of Appeals has said did not comply with the law and the facts,” Weinstein noted.

Before his indictment, Trump challenged the FBI’s seizure of the documents at Mar-a-Lago, and Cannon issued a widely criticized order blocking the government from using them for their investigation, pending a special master’s review. The 11th Circuit unanimously overturned that decision, suggesting it was a “radical” restructure of criminal procedure.

Cannon has since sought to change the perception that she’s too deferential to the one-time president who appointed her. She recently denied an effort by Trump’s attorneys to delay his trial until after the next presidential election, instead putting it on the calendar months earlier on May 20, 2024.

Steve Reilly contributed to this report.