Jack Smith says Trump should not get certain discovery docs

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Donald Trump, on the left; Judge Aileen Cannon, inset center, special counsel Jack Smith, on the right.

Left: Former President Donald Trump. (AP Photo/Andrew Harnik, File). Right: Special counsel Jack Smith. (AP Photo/Jacquelyn Martin). Inset: Judge Aileen M. Cannon (U.S. Senate).

Special counsel Jack Smith ridiculed a “conspiracy theory” recently advanced by former President Donald Trump about the genesis of the Mar-a-Lago classified documents case in a Monday court filing.

Earlier this month, the 45th president filed a motion requesting “discovery and a hearing concerning selective and vindictive prosecution.” Trump’s attorneys argue that a separate special counsel’s decision not to indict President Joe Biden over his own retention of classified documents shows the Department of Justice is discriminating against their client and acting with “political animus.”

On Monday, in a filing stylized as a surreply, Smith also referenced special counsel Robert Hur’s decision not to indict Biden.

“They contend that the incumbent president has secretly directed this prosecution — using the Special Counsel as a ‘puppet’ or ‘stalking horse,”” the filing reads. “In order to retaliate against Trump for exercising his right to criticize him and run against him.”

To hear Trump tell it, such allegations necessitate the production of discovery that will help the defense claim that the entire prosecution is corrupt and the case should be dismissed.

Smith’s office says there isn’t anything like that to discover.

“[T]he sources on which they rely, even if taken at face value, undercut rather than support this conspiracy theory, as they repeatedly emphasize that the prosecutorial decisions made by the Department of Justice generally, and the Special Counsel specifically, have been made on the basis of the facts and the law, not political considerations,” the filing reads. “The defendants offer no evidence to the contrary, because there is no such evidence.”

And, the government argues, the defense is also confused about where the relevant alleged bias comes from in the first place.

“[T]he defendants’ baseless theory that the prosecutorial decisions in this case have been made by the incumbent president, communicating his direction via the news media, is inconsistent with their requests for discovery,” the filing goes on.

The latest discovery requests lodged by Trump following the decision not to charge Biden are a “fishing expedition” and should be denied by U.S. District Judge Aileen Cannon, Smith’s office says.

“[T]he defendants have not, and cannot, satisfy the requirements for discovery on a claim of either selective or vindictive prosecution,” the government’s 12-page Monday filing argues.

In order to sustain a claim of selective prosecution, a criminal defendant has to show that someone “similarly situated” was not prosecuted — but could have been prosecuted because the evidence against the non-prosecuted person was the same or better than the prosecuted person making the selective prosecution claim.

And here, Smith says, the ex-president and his co-defendants, Waltine Nauta, Trump’s longtime butler, and Carlos De Oliveira, Mar-a-Lago’s property manager, have failed to identify any such person.

“[T]here has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s,” the government’s filing argues. “He intentionally took possession of a vast trove of some of the nation’s most sensitive documents — documents so sensitive that they were presented to the President — and stored them in unsecured locations at his heavily trafficked social club.”

When the National Archives and Records Administration (“NARA”) initially sought their return (before learning that they contained classified national defense information), Trump delayed, obfuscated, and dissembled. Faced with the possibility of legal action, he ostensibly agreed to comply with NARA’s requests but in fact engaged in additional deception, returning only a fraction of the documents in his possession while claiming that his production was complete. Then, when presented with a grand jury subpoena demanding the return of the remaining documents bearing classification markings, Trump attempted to enlist his own attorney in the corrupt endeavor, suggesting that he falsely tell the FBI and grand jury that Trump did not have any documents, and suggesting that his attorney hide or destroy documents rather than produce them to the government. Failing in his effort to corrupt the attorney, Trump enlisted his trusted body man, codefendant Waltine Nauta, in a scheme to deceive the attorney by moving boxes to conceal his (Trump’s) continued possession of classified documents. As a result, Trump, through his attorney, again returned only a portion of the classified documents in his possession while falsely claiming that his production was complete. The obstructive conduct even persisted from there. In June 2022, knowing that he had arranged for Nauta to move boxes to conceal them from Trump’s attorney, and knowing that the government had subpoenaed the security video footage that would reveal that surreptitious box movement, Trump, now joined by not only Nauta but also codefendant Carlos De Oliveira, attempted to have the information-technology manager at Mar-aLago delete the video footage that would show the movement of boxes.

“The defendants have not identified anyone who has engaged in a remotely similar suite of willful and deceitful criminal conduct and not been prosecuted,” assistant special counsel David Harbach writes in the filing. “Nor could they.”

Citing Biden as the defendants’ “primary comparator,” the government argues the cases are completely different.

“Trump, unlike Biden, is alleged to have engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings,” the filing goes on. “And the evidence concerning the two men’s intent — whether they knowingly possessed and willfully retained such documents — is also starkly different.”

Last week, Trump again lashed out at Smith — directly calling the prosecutor an arm of President Joe Biden’s reelection campaign.

Smith has yet to reply to that missive.