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Left: Former President Donald Trump, center, sits at the defense table at New York Supreme Court, Dec. 7, 2023, in New York City. (AP Photo/Eduardo Munoz Alvarez, Pool, File) Right: Special counsel Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023. (AP Photo/Jacquelyn Martin, File)
Former President Donald Trump issued a broadside attack against special counsel Jack Smith and the broader Biden administration in a late Friday motion filed in the Mar-a-Lago classified documents case.
Stylized as a reply to the government’s response over extended discovery schedules requested by the defense, the 37-page brief obtained by Law&Crime aims at prosecutors and politicians alike. The focus of the filing is the Thursday special counsel report declining to criminally charge President Joe Biden despite finding he likely violated the law by retaining and sharing classified documents.
“Yesterday, the U.S. Department of Justice released a report issued by Special Counsel Robert Hur, finding that President Biden has ‘willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,’ over the course of his decades-long career,” Trump’s reply brief reads. “President Biden will not be charged, and President Trump should not have been either.”
“Based on this evidence, the Defendants are entitled to discovery and a hearing concerning selective and vindictive prosecution, and they will ultimately demonstrate that the Superseding Indictment must be dismissed,” the filing reads.
Citing “ongoing discovery abuses” by the government, the 45th president and his co-defendants, Waltine Nauta, Trump’s longtime butler, and Carlos De Oliveira, Mar-a-Lago’s property manager, allege the decision not to charge Biden over his own unlawful retention of classified documents is “prima facie” evidence of a “selective and vindictive prosecution.”
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The controversial decision not to charge Biden over what special counsel Robert Hur said he believed was, in fact, a violation of federal law, came down to several factors. One factor cited in the 388-page report is the belief that prosecutors simply would not be able to make their case because Biden would sell himself to a potential jury as an “elderly man with a poor memory” who did not know he was breaking the law. Hur also noted, in passages on multiple pages throughout the report, that the allegations against Trump are far worse.
“The Hur Report is the latest entry on a long list of similarly situated government officials not being charged with a crime in connection with allegations relating to the handling of classified information,” Trump’s motion continues. “There is also significant evidence that this prosecution is motivated by impermissible considerations concerning President Trump’s status as the leading candidate in the 2024 election and President Biden’s chief political rival. Dating back to April 2022, the Biden Administration has urged prosecutors to coopt the criminal justice system to try and accomplish what President Biden cannot do on the campaign trial [sic], defeat President Trump.”
While pushing for the indictment to be dismissed, the criticism leveled by Trump against Smith, U.S. Attorney General Merrick Garland, Biden and others comes in a motion that argues for more expansive discovery and more time to conduct such discovery. Prosecutors have been adamant that extended discovery deadlines are just an effort to stall and push the trial date past the 2024 election.
The argument advanced by Trump’s attorneys, which is also joined by Nauta’s and Oliveira’s attorneys in the motion, is that the non-charging decision over Biden’s retention of the documents shows not only selective and vindictive prosecution but also clear evidence of “political animus.”
Each of those theories, the motion notes, are akin to terms of art under federal law — and each has its own discovery standards.
In other words, because the U.S. Department of Justice did not charge Biden, the Mar-a-Lago co-defendants are entitled to increase the scope of their discovery requests substantially, the motion argues.
“In light of the decision not to prosecute President Biden for his ‘willful’ violation of the Espionage Act, the Special Counsel’s Office can no longer avoid discovery on a selective and vindictive prosecution theories,” the motion reads. “This discovery includes all materials within the possession of the prosecution team that ‘might corroborate’ President Trump’s motion to dismiss on behalf of the Defendants.”
The motion cites several pieces of case law to bolster their argument — while musing that most prior court decisions have dealt with whether discovery can be used during trial proceedings in instances where the state had provided such discovery.
“[T]he defense seeks information and evidence demonstrating that participants in the investigation were biased against President Trump and motivated to reach false and inaccurate conclusions based on political animus,” the motion goes on. “Materiality is the standard, and it is a low bar. Relevance and admissibility are for another day — if this case survives that long.”
But, the motion also says, the government has not been complying with their already-in-place discovery demands.
“In discovery letters and motion papers, the Special Counsel’s Office has sought to avoid their discovery obligations by claiming that otherwise-discoverable materials are not in the possession of the prosecution team,” the motion continues. “In fact, other than by seeking to exclude the possessors of the evidence from the prosecution team’s scope, the Office largely declined to address the specific types of political-animus and bias evidence President Trump is seeking.”
