'It's deja vu all over again' — Yogi Berra
Trump's latest flaccid Hail Mary
In the stolen secret documents case, citizen Trump’s attorneys have submitted a blizzard of filings to derail Special Counsel Jack Smith’s prosecution — as they have in Trump’s other fraud/rape/forgery/pornstar/conspiracy/business records/obstruction/RICO cases.
Their original strategy was “graymail.” They hoped that if they could get Judge Aileen Cannon’s permission to reveal the names of confidential government agents and informants, Smith, looking to protect government assets, would decide to remove them as witnesses. Or he would have to act in a fashion that would weaken his case.
Now Trump’s lawyers have added the claim that Smith is running a malicious prosecution, at President Biden’s direction, to deny Trump his rightful coronation in November.
Smith replied to Trump’s new nonsense in a filing, GOVERNMENT’S SURREPLY IN OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL DISCOVERY (Note: “Surreply” is defined as “ a movant’s second supplemental response to another party”s opposition to a motion.)
BACKGROUND
The Special Counsel starts bluntly by calling Trump’s attempt to sand the gears complete bullshit — not that he used those words. (Bolding mine throughout.)
On January 16, 2024, the defendants filed a motion to compel discovery under Rule 16 and Brady v. Maryland, seeking an array of materials that, they speculated, could help substantiate their baseless theories of political animus and bias.
Smith added that Trump’s legal team failed to meet the legal standard or even do their homework.
In response, the Government explained that a request for this sort of discovery falls outside the scope of Rule 16 and Brady and is instead governed by the rigorous requirements set forth in United States v. Armstrong, and cases applying Armstrong, Case including United States v. Smith. The defendants did not cite Armstrong or Smith in their motion to compel, let alone attempt to satisfy the requisite standard.
Smith then goes into detail about the competing motions and a discussion about what was appropriate and when. In doing so, he disdained Trump’s lawyers’ ability.
In their reply, the defendants, for the first time, cited Armstrong and attempted to make the showing required by Armstrong/Smith.
In his response to that Trump motion, Smith again raised doubts about the quality of the defense lawyers.
The Government objected on procedural grounds, arguing that it was improper for the defendants to use a reply brief to raise these new arguments and evidence.
Next, Smith talks about the process of asking the court for permission to file the surreply, which Judge Cannon granted. He then describes Trump’s response. And he gives the defense lawyers a slow handclap for finally getting something right.
Since the Government asked to file a surreply, Trump, as forecasted, has filed a motion seeking dismissal or discovery on the basis of selective and vindictive prosecution, raising the same arguments that the defendants made in the reply to their motion to compel, as well as some additional arguments. Thus, the arguments that were improperly raised in the defendants’ reply brief have now properly been raised in Trump’s pretrial motion under Federal Rule of Criminal Procedure 12.
Smith closes his introduction.
The Government will use its forthcoming brief in opposition to Trump’s dismissal motion to respond to those arguments in depth and show why they fail.
DISCUSSION
I. Applicable Law
Smith explains that US prosecutors have the right to do their job because they are lawyers who know what they are doing.
Federal prosecutors are afforded “broad discretion to enforce the Nation’s criminal laws,” and a “presumption of regularity supports their prosecutorial decisions.” The judiciary defers “to the decisions of” federal prosecutors “in part” because of the “relative competence of prosecutors and courts.”
And they are also given discretion because Judges are not experts in matters prosecutors are. (Are you paying attention, Judge Cannon?)
“‘Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.’”
In case Cannon has missed the point, he tells her to stop lallygagging as her delays interfere with the duties of the federal justice system — duties the executive (President) is constitutionally mandated to uphold.
This judicial deference “also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function.” “‘Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.’”
The even-handed Smith does agree there are limits to the prosecutor's power.
Prosecutorial discretion is nonetheless subject to certain “constitutional constraints.”
After some discussion of what constitutes an “unjustifiable standard,” Smith gets to the current case
Another constraint, grounded in the Due Process Clause, is the prohibition against vindictive prosecution, which prohibits a “charging decision” or other prosecutorial action that is “motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.”
However, if Trump’s lawyers think they are getting somewhere, Smith tells them to sit down. For the defense to prove a vindictive prosecution, they must present “clear and convincing evidence.”
Smith then gives the defense their roadmap to win their malicious prosecution charge.
To sustain a claim of selective prosecution, a defendant “must demonstrate [1] that the federal prosecutorial policy had a discriminatory effect and [2] that it was motivated by a discriminatory purpose.”
He goes into greater detail.
The first prong requires a showing that “similarly situated individuals were not prosecuted.”
Adding: “A defendant must, as relevant here, demonstrate “that (1) the prosecutor acted with genuine animus toward the defendant and (2) the defendant would not have been prosecuted but for that animus.”
Smith reiterates that the defense needs “clear evidence.” And finishes by again reminding Cannon of the standards she must apply
Courts thus remain vigilant in ensuring that a defendant has made a sufficient showing.
In the next section, Smith explains why Trump and his codefendants have no legal leg to stand on.
II. The Defendants Cannot Satisfy the Requirements for Discovery on a Claim of Either Selective or Vindictive Prosecution.
Here, he points out that they cannot find another person who acted like Trump and was not prosecuted.
First, the defendants’ attempt to obtain discovery based on selective prosecution fails at the initial step, which requires them to identify someone who “was similarly situated with the defendant.”
He then explains why the cases of other officials who took classified documents are not the same as Trump's. Smith enumerates the many actions Trump took to further his crime. It is a long list. (If the reader is short of time or is familiar with Trump’s actions, they can skip past the following text block)
But there has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s. 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.
Smith again says the defense cannot identify someone with the same criminal intent.
The defendants have not identified anyone who has engaged in a remotely similar suite of willful and deceitful criminal conduct and have not been prosecuted. Nor could they.
He then dismisses the defense's claim that President Biden’s conduct was no different from Trump’s by quoting Robert Hur, the special counsel assigned to investigate Biden's retention of classified documents.
But as the Hur Report itself recognizes, “several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear.”
Adding: “as reflected in the Hur Report’s conclusion that “the evidence falls short of establishing Mr. Biden’s willful retention of the classified Afghanistan documents beyond a reasonable doubt.”
Smith then addresses Trump’s claim that Biden is running the prosecution.
They contend that the incumbent president has secretly directed this prosecution—using the Special Counsel as a “puppet” or “stalking horse,” in order to retaliate against Trump for exercising his right to criticize him and run against him.
He trashes that accusation using the defense's own witnesses.
But the 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.
Adding: The defendants offer no evidence to the contrary, because there is no such evidence.
He ends by referring to Trump’s lawyers' swing-and-hope strategy as a “fishing expedition.”
Finally, having dropped the bomb, he tells Cannon to deny Trump’s latest exercise in wasting time and wishful thinking.
CONCLUSION
For the reasons set forth above, as well as in the Government’s forthcoming response to Trump’s motion to dismiss for selective and vindictive prosecution, the defendants’ requests for discovery on this topic should be denied.
Take that.
