Thread by @secretsandlaws

The MAL case was never going to a jury with Cannon, so other than the political gift of the timing, today's development merely accelerates the process of DOJ figuring out next steps. However, there are no "good" options for Smith. The question is which is the least worst.

I'd start from the premise that Smith appealing and NOT asking for her removal may be the worst option. She's proven that she'll do everything she can to tank the case for Trump. But asking for her removal is a pretty dramatic step, one that DOJ will not take lightly.

For a refresher on 11th Circuit precedent on removal, please see below from @alegalnerd. This would be the second time she's taken an appealable, fairly lawless step, so maybe it's enough? But she'll just say "hey, a Supreme Court justice agrees w me!"

https://x.com/secretsandlaws/status/1772018432420024629

So I don't think this is a given.

As others have noted, filing a new indictment from the US Atty's Office for S.D. Fla. is an option. But if it goes to Cannon again (which is likely), what have you accomplished? And she'd likely need to do something AGAIN to ask for removal.

A third option I'd float is filing a new indictment in DC. As previously explained, this indictment could NOT include the Espionage Act charges. There's just no legal basis for venue there, as explained below. And the immunity decision makes it harder.

https://x.com/secretsandlaws/status/1795175010350326131

This new DC indictment would be narrow and would focus only on Trump's obstruction of the grand jury subpoena. There is a legal basis for bringing this case in DC, if brought under 18 USC 1512. See venue provision below. Per 18 USC 1515(a), "official proceeding" includes GJ.

There is a question of whether this statutory venue provision is constitutional. In US v Trie (DDC 1998), a DC district court permitted a case like to proceed. There is some earlier DC precedent to the contrary, but Congress amended 1512's venue provisions after those decisions.

And under the recent Supreme Court case of Smith v United States, there is an argument that a venue challenge from Trump would not be appealable until after conviction. But would this Supreme Court agree? Really hard to say. (HT to @rparloff for workshopping the argument here).

But as Chuck Rosenberg noted on TV this morning, DOJ will be reluctant to pursue this option given the perception of "judge shopping." I share that concern. The argument in favor is that Cannon and the Supreme Court (with immunity decision) changed the legal landscape here.

Remember, the Espionage Act charges are really DOA with Cannon after the immunity ruling. Even if the case goes to someone else, I think DOJ would prefer to narrow its indictment somewhat to focus solely on Trump's failure to return the docs.

https://x.com/secretsandlaws/status/1808124049379266619

So even if DOJ pursues option 1 (appeal and removal) or 2 (refiling in SD. Fla.), they will likely want to narrow the allegations in the indictment somewhat to focus squarely on his failure to return the docs after GJ subpoena, while still keeping the Espionage Act charges.

Finally, filing a new indictment in either SD Fla. or DC will raise questions about interference with the presidential election, even if we're outside of the mythical "60 day" window. DOJ didn't create this situation; Cannon did. But the perception of playing politics is real.

So sadly, none of these options are "good." They are all bad, and the question is which is the least worse. It's a very tough call, but I'd likely pursue option 1 -- appeal and removal, and then still narrow the indictment allegations if and when the case proceeds.

Sigh.