How Merrick Garland Can Outsmart Judge Cannon and Put Trump on Trial

The Justice Department would have been subject to severe criticism if it had indicted Trump in D.C. in addition to Florida—thereby double-charging him. That is no longer a problem in light of Cannon’s dismissal order on Monday. But the same venue problem exists for the 34 charges for unlawful retention of classified documents, and so a new indictment should include only those charges relating to the refusal to comply with the D.C. grand jury subpoena: specifically, six related counts of obstruction of justice, concealing records, and making false statements about the subpoenaed documents. Trump’s employees could be named as co-conspirators but could not be tried in D.C.

There is another major advantage for the government in omitting the charges for unlawful retention of classified documents. The case has instantly become much simpler because the prosecutors will no longer have to prove that the documents were properly classified or even contained defense information. The grand jury subpoena had to be honored, even if the documents turned out to be Trump’s personal papers, and the unlawful cover-up does not require the prosecution to show that there were any classified records being withheld. Of course, FBI agents will be permitted to testify that they recovered boxes marked “Secret,” and the jury will be instructed that the labels do not prove that the boxes contained classified information, but the labels will nonetheless provide strong evidence of a motive for the cover-up.