There has been a lot of speculation about what would have happened if Special Counsel Jack Smith charged Donald Trump for the Espionage Act case in another venue, as opposed to Florida, but that's a "false premise," according to a former attorney with the CIA.
Brian D. Greer, an attorney at the CIA's Office of General Counsel from 2010 to 2018, addressed recent claims that Smith should have brought the classified documents case in Washington, D.C., perhaps avoiding Judge Aileen Cannon, who has been accused of bias in favor of the ex-president who appointed her to her spot on the federal bench.
"Since the 'Smith should have just brought the documents case in DC' chorus is picking up again, it's time for a reminder as to why that's not true," Greer said Monday. "Please read before continuing to propagate this false premise."
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Greer goes on to say that "Smith is bound by the Constitution, federal law, and case law -- which collectively requires that, at minimum, a 'conduct element' of the offense be committed in the district where it's charged."
"Let's look at the offenses," the lawyer added. "For the Espionage Act charges, Trump is charged with unlawfully retaining the docs. The issue with charging him in DC is that he was still POTUS when he removed the docs from the White House down to Florida. He arguably was within his rights to do so, even if it's egregious."
He continued:
"Simply put: it was not a crime while POTUS, even though that's hard to swallow. No conduct element in DC. For the Espionage Act charges, that might still leave a conspiracy charge. Was an 'overt act' committed in DC? Maybe, but Trump would have been POTUS when that act occurred."
Greer goes on to say, "Charging that 'overt act' would have run straight into a presidential immunity assertion, as handling classified records is likely to be seen as an official act while President."
"Everything that's happened w the J6 case would have happened here... except Trump would have had a better immunity argument, one that SCOTUS likely would have sided with, before trial," he added. "So that leaves the various obstruction charges. There too, all of the 'conduct elements' for those charges occurred in Florida, not DC."
Greer concluded by saying that "having to charge the case in S.D. Florida, where drawing Cannon was very likely, completely sucked."
"But prosecutors are bound by the Constitution, the law, and reality -- so charging the case there was the right thing to do, and really the only [choice] they had," he added. "Womp womp."