QUESTION: What is your legal opinion of former AG Barr and this judge in Florida? Barr seems to trash Trump with every breath he takes, and the media seems to emphasize that Trump appointed this judge, so she is biased over the whole grand jury issue. It would be great to hear your perspective.
ANSWER: Former AG Barr, I believe, is one of the Swamp creatures. I would not trust a single word he ever says he is protecting the Swamp. As for a legal mind, he is avoiding the very intent behind the Constitution. As for this “Donald Trump-appointed judge” overseeing the criminal case into his handling of classified documents in Florida questioning special counsel Jack Smith, she is correct. If Smith tries to appeal anything with that regard, I would take this matter, shove it down his throat, and go to the Supreme Court ASAP.
The entire Sixth Amendment was constructed on this very type of abuse of power by the former king. He would indict you in England and then arrest you in America, transport you to his selected jury who was anti-America. You were always found guilty for political purposes. I would add that at the time of the American Revolution, there were about 240 felonies, and they all carried the death penalty. It is critical to look at both the 5th and 6th Amendments, and you will get a sense that what Smith is doing is circumventing the Constitution by indicting Trump in Washington using a pro-government jury. Still, he has to prosecute him in Florida under the 6th Amendment.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
You cannot be prosecuted in California for a crime in Florida or out of state. That is the Venue clause to be tried where the crime was committed, NOT the most favorable place to win a conviction. What Smith is doing is UNCONSTITUTIONAL, and it is treason. He is doing what the king used to do only because the Sixth Amendment does not expressly state that the grand jury must also be where the crime is committed. Up to now, I have never heard of getting indicted in one state and prosecuted in another. The reason also implies that, in many instances, state law also applies. The Erie Doctrine is a binding principle where federal courts exercising diversity jurisdiction apply federal procedural law of the Federal Rules of Civil Procedure but must also apply state substantive law.
To explain this principle, the Erie Doctrine stems from the landmark U.S. Supreme Court case, Erie Railroad Co. v. Tompkins 304 US 64 (1938). Then you have the Rules Decision Act of 1789 (28 U.S.C. § 1652), which established the very foundation for how federal courts were to function under such a diverse jurisdiction providing that the “laws of the several states” apply in federal court. I fail to see how you can indict someone in one state under the governing state laws and then prosecute someone in another. That would be like taking a California law saying it is child abuse not to inform your child they may change their gender and then prosecute them in Texas, where the law is precisely different using a California indictment. This is a clever scheme Smith has pulled off, and anyone who sees no problem with this is politically biased.
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Now let us turn to the Fifth Amendment requiring a grand jury indictment. It does not state one district v another because the Constitution under Article III only created the Supreme Court – NOT the distinct Courts. They are all the creation of Congress by statute, and Congress has no power to shut down the Supreme Court or really to even regulate it. Therefore, the Grand Jury Clause did not consider multiple districts, for there were none at that time. The indictment was to be where the crime was to be charged. Any other interpretation would be a constructive amendment of the Constitution which cannot be done by any prosecutor and not even Congress without the complete Amendment Process of the states.
Procedural & Substantive Due Process of Law
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That said, Due Process requires that the procedures by which laws are applied must be evenhanded. No individual is to be subjected to the arbitrary exercise of government power, which Smith has clearly done. There is no precedent for his actions. A fundamental threshold issue in Due Process is whether the government conduct being examined as criminal determines whether the procedure is offensive to the concept of fundamental fairness. Smith has abused his power, and if I were on the Supreme Court, I would have to vote for dismissing the indictment with prejudice — meaning that terminates the case because of his abuse of power.
In U.S. v. Carolene Products, 304 U.S. 144 (1938), the Supreme Court indicated that substantive due process would apply to: “rights enumerated in and derived from the first Eight Amendments to the Constitution, the right to participate in the political process, such as the rights of voting, association, and free speech, and the rights of ‘discrete and insular minorities.’” Following Carolene Products, the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms.
If I were Trump’s lawyers, I would file a motion to dismiss based on a Substantive Due Process of Law violation.