Myrtle Beach, SC
Forum-shopping is a feature of ordinary criminal practice the way rain is a feature of a beach vacation. Everybody knows it happens, and that does not mean a hurricane is just weather. But before I make that argument I have to deal with something inconvenient, because I spent a week with the filings and the story I had in my head did not match them.
The documents case was brought in Florida. Not attempted in Washington and moved. Not fought over. The special counsel ran a grand jury in the District of Columbia for a long stretch of that investigation, there was a great deal of commentary predicting charges there, and in June the indictment came down in the Southern District of Florida — Fort Pierce division, before Judge Aileen Cannon, a judge appointed by the defendant and, by any honest accounting, the most favorable draw available to him anywhere in the federal system. The superseding indictment six weeks later was filed in the same court. She has since set trial for next May.
I work in marketing, and one of the least comfortable things that field teaches you is how to notice when a narrative has outrun its evidence. The narrative about venue in these cases is that the government hunts for friendly rooms. In the case where the government had the strongest incentive to do that, and where commentators expected it, the government filed where the boxes were and drew the judge least likely to help it. That is the opposite of shopping. It is worth saying plainly, and worth saying by people who are otherwise critical of these prosecutions, because an argument that cannot survive its own best counterexample is not an argument. It is a slogan.
So let me restate the concern in a form the record supports. Location is part of the message even when nobody says so. A product launch in Times Square communicates something different from the same launch in a warehouse. A rally in a hometown reads differently from the same speech in an opponent’s stronghold. Venue does that work too, because ordinary people know jury pools are not culturally interchangeable. That may make lawyers uncomfortable. It is still true. The public knows Washington votes differently from rural Florida, and pretending jurors arrive without any environment does not make the system look principled. It makes it look naive.
The January 6 case is where the real question sits, and it is genuinely hard. The conduct centered on the Capitol, Congress sits there, and the witnesses and institutional records are there. Venue in the District is lawful and obvious. It is also, for this defendant, the least neutral jury environment in the country — a jurisdiction where the Democratic presidential candidate took better than ninety percent of the vote in each of the last two elections. Both facts are true. A good system can hold two facts. A weak one picks the comfortable fact and treats the other as improper to mention.
What I want is not a friendly room. A defendant is entitled to an impartial jury, not to supporters in the box, and the Sixth Amendment locates a trial in the district where the crime was committed for reasons that predate all of us. What I want is for the question to be examined on a record, before trial, by a judge who has to write down an answer. Most of the value is in the timing. A venue objection litigated at the start looks like procedure. The same objection raised after a conviction sounds like a loser complaining about the room, and it can never be fully separated from the result.
Here I have to concede a second point. The government does not control that timing and neither, entirely, does the trial judge. The federal rule on transfer requires the defendant to move for it. And the defendant in the January 6 case announced on social media on the sixth of August that he would seek a change of venue immediately, named West Virginia as his preference, and has not filed the motion. His lawyers have filed for the judge’s recusal in the past week. No transfer motion. A court cannot rule on a request nobody makes, and it cannot move a case on its own initiative because it suspects a pool is saturated.
That does not make the underlying weakness imaginary. It relocates it. If the concern is that venue in nationally consequential prosecutions gets settled by tactical silence and appellate custom rather than by a reasoned record, the fix is a rule, not a scolding of judges nobody has asked. I would write it this way: in federal prosecutions of a president, a former president, or a major presidential nominee, where more than one district has a substantial connection to the conduct, the government files a short statement of the operational basis for its choice at indictment, and the court addresses any substantial defense challenge on a written record before jury selection.
Both of these trials are now scheduled inside the primary calendar — March fourth in Washington, May twentieth in Florida. If the venue question is going to be answered at all, it has to be answered in the next five months, and at the moment nobody has asked it.
Novi, MI
A plant that can pick which inspector grades the part will pick the inspector. That may be common practice. It is still a process-control problem, and my instinct going into this question was that these two prosecutions were a textbook case of it. Working through the dockets changed my answer in one direction and sharpened it in another.
Start with the correction, because it matters and because I have heard the wrong version repeated in my own shop. The classified-documents case was not filed in a district the government preferred over Florida. It was filed in Florida — Southern District, Fort Pierce division, in June — where the property is, where the search was executed, where the boxes sat, and where the assignment wheel produced a judge the defendant himself put on the bench. The government took the operational routing and accepted the draw. It is not evidence of forum shopping. It is evidence against it.
That is worth sitting with, because in quality work a hypothesis that survives only when you exclude the strongest test is not a hypothesis. It is a preference. If the government were routinely optimizing venue for jury composition, the documents case was the easiest place to do it and the government did not.
Now the January 6 case, where the tension is real. The conduct centered on the Capitol. Witnesses, records, and government offices are in the District. Venue there is legally understandable and I do not think it is seriously contestable under the Sixth Amendment, which puts the trial where the crime occurred. It also creates the hardest jury-pool problem imaginable, because the defendant is the most polarizing figure in the country and the District is one of the most politically distinctive jurisdictions in it. Those two facts occupy the same square footage and a court should not pretend the overlap is irrelevant.
Manufacturing people handle this with measurement systems. You do not assume a gauge is fine because the manual says it was calibrated. You run a study. You check whether the measuring environment is distorting the reading. My instinct was that a court should run that study on the District’s pool at the front of the case, and I still think a record would be worth having. But here is the part I did not know when I formed the instinct, and it changes where the fix has to go.
There is already a mechanism. The federal rule on transfer lets a defendant move to try the case elsewhere on a showing of prejudice so great that a fair trial is impossible in the charging district. It is defendant-triggered. A judge cannot pull it on her own. On the sixth of August the defendant announced he would immediately seek a venue change out of Washington and named West Virginia as the place he wanted. Six weeks later there is no such motion on the docket. His lawyers filed for recusal last week. Nothing on transfer.
So the control exists, the operator has declined to use it, and the process is running without the inspection. That is a fact about this case and not a criticism of the court.
There is a second constraint, and it forecloses the reform most people are asking for. Under a D.C. Circuit practice established in the Watergate prosecutions, district judges there defer transfer rulings until after jury selection, on the theory that you cannot know whether voir dire can produce an impartial panel until you have tried it. Dozens of January 6 defendants have moved to transfer and been denied on that reasoning. So a district judge in Washington who wanted to hold an early evidentiary hearing on saturation and write findings before jury selection would be departing from her own circuit’s settled practice to do it.
That reframes the question this forum asked. Courts have not failed to intervene early because they are indifferent or because the defendant is unpopular. They operate under a rule that says the early intervention is premature by design. If that rule is wrong for this narrow class of case — and I think it is — then the target is the rule, not the judges applying it. Saying courts should intervene earlier without saying which precedent they should depart from is a complaint, not a specification.
So here is my specification. For federal prosecutions of a sitting president, a former president, or a major presidential nominee, the deferral custom should not apply. The defense should be required to raise transfer at the outset or waive it. The government should state the operational basis for its filing district. The court should make findings on saturation, alternative forums, witness and evidence location, security, and administrative burden before jury selection rather than after. Not a friendlier rule. A clearer one, applied without regard to which party holds the Justice Department.
High-consequence systems get more inspection, not less. That is how engineering works, and it is the only version of this argument that will still be worth making when the caption changes. Right now we have a March trial date in the most politically saturated district in America and not one page of judicial analysis about whether that is the right room.
Orange County, CA
Orange County lawyers make jokes about forum shopping in civil cases because everybody knows forum choice affects outcomes. The joke gets less funny when the government is the party choosing and the defendant is a former president. It also gets more complicated than the joke allows, because these two cases point in opposite directions and most of the commentary has only discussed one of them.
The respectable legal answer is straightforward. Prosecutors may file where venue is proper, and defendants are not entitled to a politically congenial jury. I agree with both propositions and neither finishes the analysis. I work in commercial real estate, and location is never just a pin on a map. It changes value, cost, risk, who shows up, and what assumptions are reasonable. Legal forums behave the same way — a district has judges, precedent, juror demographics, culture, logistics, and cost — which is why sophisticated parties negotiate forum-selection clauses before a dispute exists. If venue had no practical value nobody would pay lawyers to fight about it.
Here is the fact that complicates the shopping thesis, and I want it on the record before I make my argument rather than after. The documents case was filed in the Southern District of Florida, in the division that produced Judge Cannon, and the government has stayed there through a superseding indictment and three months of pretrial litigation that has not gone especially well for it. If a prosecutor were ranking forums by expected advantage, that is not the ranking he would have produced. So the strong form of the accusation — that the government has treated venue as a strategic variable across these cases — does not survive contact with the docket.
The January 6 case raises the real question, and the question is not whether the District is a lawful venue. It plainly is; the alleged conduct centered on the Capitol. The question is whether lawful venue and fair venue are the same thing in a jurisdiction that has given this defendant single digits twice, and whether anyone will ever be required to answer that on a record.
The answer, structurally, is probably not, and for two reasons that have nothing to do with anybody’s willingness. Transfer under the federal rules is a motion the defendant must make, and this defendant said publicly in August that he would make it and so far has not. And the circuit governing that district has held since the Watergate era that transfer rulings should wait until voir dire has been attempted, so even a filed motion would be carried past jury selection rather than decided at the front of the case.
That second point deserves more weight than it is getting, because it is the one that actually forecloses the reform. The reasoning behind the deferral rule is not unprincipled — you genuinely do learn something from questioning a hundred prospective jurors that you cannot learn from a survey. The cost of the rule is that the record gets built after the community has already formed a view of the case, and in an ordinary prosecution that cost is small. In a prosecution scheduled to begin eight weeks before Super Tuesday, it is not small.
That matters for how the criticism should be aimed. My concern was never that prosecutors consider litigation advantage; every lawyer does. My concern is that the government is not an ordinary litigant. It has coercive power, investigative power, charging power, and resources no defendant can match, and when it also selects among forums the imbalance compounds. Judicial supervision should scale with the stakes. A lender protects itself with covenants and a borrower can negotiate; a criminal defendant cannot negotiate the charging decision, so the court is the counterweight. A counterweight that circuit practice tells to wait until after jury selection is not operating early, and the fix is at the level of the rule.
I would also separate venue from voir dire more carefully than courts usually do. The standard answer is that individual screening solves bias, and often it does. It does not automatically answer a saturation problem. If nearly everyone in a pool has lived for years inside the same political and media environment concerning this specific defendant, the question is not whether jurors are honest. It is whether the system is asking more of them than the design contemplates. Appraisal has the same concept: an appraiser can be entirely honest and still work in a market whose comparables are distorted. You do not insult the appraiser by acknowledging the market. You adjust the analysis and document the adjustment.
So my reform is narrow and about legibility rather than outcomes. In nationally consequential federal prosecutions where multiple districts have substantial connections, the government should state on the record why it chose the district it chose. The defendant should be required to raise transfer early or lose it. The court should weigh conduct, evidence, witnesses, security, administrative burden, and saturation, and write a reasoned decision before jury selection. It makes nobody’s outcome likelier. It makes the process legible, and legibility has value the way transparency has value in a market — the more opaque a choice looks, the more freely people fill the gap with politics.
Bismarck, ND
You file where the boxes are and you try the case where the conduct happened. That is the simple rule, and in the documents prosecution it is also what actually occurred, which is worth saying because I had assumed otherwise for months and I was wrong.
The records were at Mar-a-Lago. The search was in Palm Beach County. The property is in Florida. And the indictment came down in the Southern District of Florida in June, in the Fort Pierce division, in front of a judge the defendant appointed. There was a good deal of speculation beforehand that the case would be charged in Washington, because much of the grand jury work had been done there. It was not. The government filed where the evidence sat and accepted the draw. Whatever that record shows, it does not show a prosecutor picking a room.
I work in compliance for an energy-services company, and before that in state government and agricultural lending. My whole professional life has been about documenting discretion — why this operator, why this penalty, why this finding — so I am inclined by temperament to suspect any decision that comes with no paper behind it. But documentation cuts both ways. When the paper exists and it contradicts the story, you change the story. That is what compliance means when it is not just a word on a letterhead.
The January 6 case is the harder one and I do not want to soften it. The conduct happened in Washington. The Capitol is in Washington. The District is a lawful forum by any reading of the Constitution, which puts a trial where the crime occurred. The District is also a place where this defendant received something like five percent of the vote twice running. Both are true and courts should be willing to say both out loud. Saying the second is not an insult to the people who live there. It is a venue fact, and pretending otherwise is what makes ordinary people outside Washington conclude that national institutions write rules for themselves and explanations for everybody else.
So should a court look at it early? My answer is yes, and my answer has to survive two facts that complicate it.
The first is that transfer is a motion the defendant files. Federal courts do not move cases on their own initiative because they suspect a pool is saturated. The defendant announced in August that he would seek a venue change out of Washington and named West Virginia. His lawyers have since filed to disqualify the judge. They have not filed to move the case. You cannot fault a court for failing to decide a question nobody has put to it.
The second is that even a filed motion would probably not be decided early, and this is the part I did not know. The circuit that governs that district has held since the Watergate prosecutions that transfer rulings wait until jury selection has been attempted. And this is not theoretical: something like a hundred January 6 defendants have moved to transfer out of the District on precisely the saturation theory being discussed here, and they have been denied so uniformly that the chief judge of the court described the accumulated rulings as a brick wall. The judge now presiding over this case denied one of them herself, writing that jurors’ political leanings are not by themselves evidence that those jurors cannot consider the evidence fairly.
That is a documented standard applied consistently to a hundred defendants before this one arrived. It is the opposite of an improvised rule, and anybody arguing that a special exception is being made against this defendant has to explain why the same rule produced the same answer for everyone else.
Which is where I would put the reform, and it is a narrower target than the question implies. The problem is not judicial willingness. It is a rule written for ordinary cases and applied to a case that is not ordinary. For prosecutions of a president, a former president, or a leading presidential candidate, I would require the transfer question to be raised at the outset and decided on a written record before jury selection, with the government stating its operational reasons for the district it chose — witnesses, evidence, conduct, security, administration — and not voter registration, not partisan comfort, not who drew the judge.
I would want that identical rule if a Republican Justice Department tried a former Democratic president in a district that had voted ninety percent against her, and I put that on the record because it is the only version of this argument worth making. A rule that only helps the side you like is a preference wearing a rule’s clothes, and everybody can tell.
The trial is set for March fourth. There is no venue motion, no hearing, and no record, and in six months there will be a jury.
Clermont, FL
Florida understood what the room meant the moment the Mar-a-Lago search became national news, and Florida is also where the case was filed. That is the fact I want to establish at the top, because a great deal of commentary in this state has it backward and I have heard the backward version at my own kitchen table.
The documents indictment was returned in the Southern District of Florida in June. Fort Pierce division, Judge Cannon presiding, a judge appointed by the defendant during his own term. The government had run much of its grand jury investigation in Washington and there was widespread expectation that charges would come there. They came here instead, where the boxes had been stored and the warrant had been executed. The superseding indictment stayed here. Trial is set for May.
I moved down from upstate New York fifteen years ago and I consult with small professional firms, so I am used to clients who have already decided what happened and want help proving it. The discipline is the same either way: check the filing before you argue about the motive. On this one the filing does not support the shopping charge. If the special counsel were selecting rooms for advantage, Fort Pierce was the worst room available to him in the federal system, and he filed there anyway because that is where the evidence and the conduct were.
That does not settle the general question. It settles this case, and it makes the general question harder rather than easier, which is usually a sign you are getting somewhere.
Businesses care intensely about where disputes are heard. Every commercial contract I review has a venue clause, and nobody writes one because all courts are interchangeable. So the criminal system should stop pretending the practical differences vanish when the government is the party choosing. Forum shopping exists. The honest question is how much of it a country should tolerate in a prosecution capable of affecting a national election, and the honest answer requires admitting that in the case closest to home, it did not happen.
The January 6 prosecution is where the tension lives. Washington is the obvious geographic forum — the event occurred there, Congress sits there, the witnesses and institutions are there — and it is about as unfavorable a jury environment as this country contains for this particular defendant. A good system can hold two facts at once. A weak one selects the comfortable fact and rules the other out of bounds. I would rather courts said the second part plainly, not because jurors in the District are dishonest but because political saturation is a real condition, and a court that cannot name a condition cannot manage it.
Here is the practical difficulty, and I did not appreciate it until I read the docket. Transfer is a defense motion. The defendant said in August that he would immediately seek to move the case out of Washington and has not filed the request. And the appellate practice in that circuit, dating to Watergate, is that transfer motions get carried until after voir dire, on the theory that you cannot evaluate a pool you have not questioned. So the early hearing everyone is calling for has neither been requested by the party entitled to request it nor is it available under the circuit’s own custom.
That changes what the reform has to be. Not stern words for judges nobody has asked. A rule. For federal prosecutions of presidents, former presidents, and major national candidates, require an early written venue analysis on a substantial defense challenge: government explains the connection, defense explains the prejudice, judge explains the decision, all before the public becomes invested in a verdict. It guarantees nothing about transfer. It guarantees daylight.
Small businesses live on procedural trust, and the lesson generalizes better than most business lessons do. Owners will accept a decision that goes against them if the rules were posted before the dispute. They will not accept a decision that appears improvised around the identity of the other party, and once that belief takes hold, every technical explanation afterward sounds like cover. Fast-growing counties like mine fight over this constantly — people are convinced the zoning outcome was settled before the hearing opened, and the hearing becomes theater regardless of how it is conducted.
Venue works the same way. If citizens believe a room was chosen for the jury pool, a later verdict does not cure the suspicion; it confirms it. That is why the ruling has to come before the trial becomes the story, and why it matters that both of these trials are now scheduled inside the nominating calendar with no venue record in either one. The caption argument — that none of this would matter if the defendant were a quiet contractor — is partly true and entirely beside the point. The stakes are why the procedure deserves more attention, not less. High-profile defendants should not get special outcomes. They may require more transparent process, and those are different things.
Jacksonville, FL
Ports live on posted berths. A shipper needs to know where the cargo goes, who inspects it, what tariff applies, and what happens when a box gets rerouted. Venue is a berth, and my complaint about these cases is a documentation complaint before it is anything else.
Start with what the manifest actually says, because I got this wrong in conversation more than once before I went and looked. The documents case berthed in Florida. Southern District, Fort Pierce, June, in front of a judge the defendant appointed — and it berthed there after months of grand jury work in Washington and a great deal of expectation that Washington was where it would land. The cargo was here, the search was here, the witnesses are substantially here, and the government routed accordingly and took the terminal it got. There is no version of that sequence that reads as a prosecutor picking a favorable dock.
I have been a dispatcher and a claims adjuster and I now work schedules and drayage, so I am comfortable saying that routing decisions need reasons and that the reasons should be written down. Weather, capacity, equipment, labor, security, cost. If a dispatcher sends a load to the wrong terminal because he likes the supervisor there, he may still deliver, but he has not followed a neutral routing rule and the next audit will say so. The legitimate factors for venue are the same in kind: witnesses, evidence, conduct, administrative need, security, and the statutory grant. Political composition is not one of them.
The January 6 case is the hard one and I want to state the difficulty without softening either side. The District is the natural berth. The alleged conduct centered on the Capitol; the Constitution puts the trial where the crime occurred; nobody serious disputes that venue is lawful. The District is also a forum in which this defendant was rejected by ninety-odd percent of the electorate twice. Acknowledging that second fact does not insult the jury pool. Courts already acknowledge publicity, already question jurors about prior opinions, already transfer some famous cases when a community is saturated. Political saturation should not be the one condition nobody may name.
But here is where my routing argument runs into the actual rules, and I would rather concede it than pretend. The transfer mechanism in federal criminal practice is triggered by the defendant, not the court. And this defendant announced in August that he would immediately seek a venue change out of Washington, named West Virginia, and has not filed the motion — not alongside the recusal papers his lawyers filed last week, not at any point in the six weeks since he said it.
On top of that, the circuit covering the District has held since the Watergate prosecutions that transfer rulings should be deferred until jury selection has been attempted, which is why a long line of January 6 defendants has lost the same argument on the same reasoning. So the berth rule I want does not exist yet, which is precisely why I want it written.
Three parts. First, in prosecutions of a president, a former president, or a major presidential nominee, the government files a short statement at indictment identifying the operational basis for the district it selected. Second, the defense raises transfer at the outset or waives it, rather than announcing an intention on social media and letting the question hang over the case for a year. Third, the court decides on a written record before jury selection, with the deferral custom suspended for this narrow class of case. That posts the berth before the cargo arrives.
The accepted-practice defense is too casual for federal criminal power in any event. The government is not a customer comparing terminal rates. It can subpoena, search, indict, and detain, and it brings the full weight of the United States when it does. With that power should come more transparent venue discipline, not less, and the fact that the government behaved well in the documents case is an argument for writing the rule down rather than against it. Good conduct that depends on the character of the officeholder is not a rule. It is luck.
The caption is making the weakness visible because the defendant is nationally important. A giant ship reveals a shallow channel faster than a fishing boat, and the channel was there before the ship arrived. That is the useful lesson, and the reason to act on it now is the next administration rather than this one. If aggressive forum selection gets blessed by silence, future prosecutors will use it, find a district with some connection to the story and a pool they prefer, and call the choice lawful — which it will be. Every opposition will call it rigged. That is not a stable system.
Two trials are on the calendar for next spring, both inside the nominating season, in two of the most differently situated districts in the country, and there is no record in either one about why the cargo went where it went. Post the berth. Then follow it.
Las Vegas, NV
A house that lets the pit pick the dealer is not automatically cheating. It is still a control problem. That was my opening position and I am keeping it, but the hand has played out differently from the way I expected once I looked at the cards face up.
The documents case was dealt in Florida. Southern District, Fort Pierce, June, before a judge the defendant appointed himself — and it was dealt there after a long stretch of investigation in Washington that had a lot of people expecting a Washington indictment. The boxes were in Florida, the search was in Florida, the property is in Florida, and the government filed there and has lived with the draw through three months of rulings that have mostly not gone its way. If the house were rigging the table, it did a spectacularly poor job of it in the one case where rigging would have been easiest.
I manage operations for a hospitality vendor and I dealt cards for a living before that, so I will say the obvious thing about a losing hand: sometimes the game was straight and you still lost. People who cannot say that about a case they dislike are not analyzing anything. They are rooting.
The January 6 case is where the control problem is real. Washington is the geographic home of the conduct — the Capitol is there, the events were there, that is not a close call — and Washington is also about the worst political room in America for this defendant. Two facts. Hold both. The question a venue hearing should ask is whether the first outweighs the second, and the answer might well be yes. I would accept yes on a record. What I object to is that nobody has asked.
Except that when I went looking for who had failed to ask, the answer was not the judge. Transfer in a federal criminal case is something the defendant moves for; the court does not deal itself into that question. This defendant said in August that he would seek a change of venue out of Washington immediately, named West Virginia, and has not filed. His lawyers filed for recusal last week instead. And the circuit covering that district has held since Watergate that transfer motions get carried until after jury selection, which is how a long line of January 6 defendants lost the identical argument.
Worth noting, since it is where forum has actually been litigated in these cases: the fights that have happened have been about removal rather than transfer, and they have been decided quickly. This defendant moved to remove the New York state case to federal court in May and Judge Hellerstein denied it in July. In Georgia, Mark Meadows moved to remove the Fulton County indictment to federal court on the ground that he was a federal officer acting within his duties, and Judge Jones denied that ten days ago after an evidentiary hearing at which Meadows testified. More removal petitions from other defendants are pending.
So the system is entirely capable of holding an early, on-the-record hearing about which court should try a politically explosive case. It has done it three times this summer. It has done it because somebody filed something. The reason there is no venue record in the January 6 case is that nobody has filed for one, and the reason it would not be decided quickly if somebody did is a fifty-year-old circuit practice.
A casino does not build confidence by telling the player every dealer is identical. It builds confidence by posting the rules and supervising the game, and what is missing here is not judicial willingness but a posted rule. So write one. For prosecutions of presidents, former presidents, and leading candidates, suspend the deferral custom, require the defense to raise transfer at the outset or lose it, require the government to state its operational reason for the district, and require the judge to decide in writing before the first hand is dealt. Not because these defendants deserve friendly juries — they do not, and a defendant is entitled to an impartial panel rather than a sympathetic one. Because the country needs to be able to trust the table.
I would want the same rule under a Republican administration, and I say that plainly rather than by implication. If a future Justice Department tries a Democratic former president in the reddest lawful district it can locate, I want the same judge asking the same question at the same stage.
There is a cost to the court in leaving this alone that judges should care about more than they seem to. A verdict should rise or fall on testimony, exhibits, and law. It should not arrive carrying a second argument about whether the room was selected for advantage, because that argument never ends and it cannot be answered afterward. The cheapest way to prevent it is to settle the room before the trial starts. There are five and a half months until the first one.
Knoxville, TN
You try the warehouse case at the warehouse. That is the civil-engineer version of venue: put the work where the conduct, evidence, and witnesses naturally point, and document any deviation. What I found going through these two dockets is that the documents case followed that principle exactly, and that the January 6 case raises a design problem the rules are not built to solve.
Take the easy one first. The documents indictment was filed in the Southern District of Florida in June, in the Fort Pierce division, before a judge the defendant appointed. The records were in Florida, the search was in Florida, the property is in Florida. There had been months of grand jury work in Washington and plenty of expectation that Washington was where the charges would land, and the government filed where the evidence sat instead. Site selection followed the constraints and the government is taking the consequences, which so far have included a superseding indictment and a trial date it did not want. I do not know how to characterize that as forum shopping and I am not going to try.
The January 6 case is the design problem. Washington is both the natural site and a politically saturated room. The Capitol is there and the event happened there, which makes venue legally obvious under a constitutional provision that has been in place since the founding. The defendant was also rejected by better than ninety percent of that electorate in two consecutive elections, which makes fairness worth examining. Those facts do not cancel. They create a loading condition, and engineers do not resolve a loading condition by declaring that one of the loads is impolite to mention. You calculate both and you show the calculation.
I work in a county public-works shop, and the reason I care about timing is sunk cost. A bad alignment discovered before grading is a memo. The same alignment discovered after the concrete is poured is a supplemental appropriation and a year of hearings. Venue has the identical property: once a case is built around a forum, witness plans, security arrangements, schedules, and strategy all accrete around it, and the system starts treating the accumulated investment as a reason not to move.
That is exactly the position this case is heading toward. Trial is set for March fourth. Discovery is enormous and classified material is involved on the Florida side. Every week that passes makes a transfer more expensive and therefore less likely, entirely apart from the merits of whether one is warranted.
Here is what I did not know before, and it changes my prescription rather than my conclusion. The federal transfer rule is defendant-initiated — a court cannot relocate a case because it independently suspects prejudice. The defendant announced in August that he would immediately seek a change of venue and named West Virginia, and the motion has not been filed. Meanwhile the circuit governing that district has held since the Watergate prosecutions that transfer questions should be deferred until voir dire has been attempted, on the reasoning that you cannot assess a pool you have not questioned. Dozens of January 6 defendants have run into that rule and lost.
So the specification failure is upstream of the judges. Asking a district judge in Washington to hold an early saturation hearing and make written findings would be asking her to depart from her own circuit’s practice, on a motion nobody has filed. That is not a fair criticism of a trial court. It is a fair criticism of a rule written for ordinary cases and applied to a category the drafters never contemplated: a prosecution whose legitimacy the entire country is grading in real time, on a calendar that overlaps a nominating contest.
Fix the specification. For federal prosecutions of a president, a former president, or a major presidential nominee, suspend the deferral custom. The defense raises transfer at the outset or waives it. The government identifies the operational and legal connection supporting the district it selected. The court makes findings on saturation, alternative forums, witness and evidence location, security, and administrative burden, and issues a written decision before jury selection. The rule applies regardless of party — I do not want a red-county escape hatch for Republicans any more than a blue-city home court for Democrats — and it produces a document rather than an outcome. A strong venue choice gets stronger when a neutral judge explains it on the record, and a weak one deserves correction before the verdict inherits the weakness.
Accepted does not mean unlimited, and we have always done it this way usually means nobody has examined the rule recently. These cases are forcing the examination whether anyone wanted it or not, and the useful response is to fix the standard rather than argue about whether the flaw only matters because the project is famous. Big projects reveal design flaws. That is most of what big projects are for. But the window closes when the concrete sets, and on the current schedule that is about five months out.
