Special Counsel Jack Smith recently blasted former President Donald Trump’s demands for evidence in a blistering filing to Trump-appointed Judge Aileen Cannon — evidence Trump can’t establish even exists via Mediaite.
It has been noted that after Trump-appointed Judge Cannon rejected efforts to delay the Espionage Act trial last week, Trump’s legal team filed a stack of motions demanding the dismissal of the case on grounds that most experts find flimsy, at best.
However, Trump’s team and Smith have also been jousting about Trump’s demands for evidence in the case, which is the subject of a new and scathing filing by Smith that podcaster Dr. Allison Gill flagged.
In previous filings, Smith has argued that Trump’s demands to unseal evidence would place witnesses at risk. In this latest 12-page additional response to Trump’s motion, Smith slams Trump for demanding “an array of materials that, they speculated, could help substantiate their baseless theories of political animus and bias” — without any ability to show that evidence exists:
A defendant must also meet a “correspondingly rigorous standard for discovery in aid of such a claim.” Armstrong, 517 U.S. at 468; see Sanders, 211 F.3d at 717 (discussing vindictive prosecution). To do so, the defendant must make “a credible showing” to support his claim, which requires providing “some evidence tending to show the existence of the essential elements of the defense.” Armstrong, 517 U.S. at 470 (quotation marks omitted). This standard “is only slightly lower than for proving the claim itself.” United States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016) (quotation marks omitted); see United States v. Lewis, 517 F.3d 20, 25 (1st Cir. 2008) (the standard “is somewhat below ‘clear evidence,’ but it is nonetheless fairly high”); United States v. Rasco, No. 08-cr-100, 2010 WL 2160836, at *5 (S.D. Ga. May 27, 2010) (the standard for discovery is “quite rigorous”) (quotation marks omitted). Given the substantial “costs” of discovery in this context, Armstrong, 517 U.S. at 468, “the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims,” id. at 464. Courts thus remain vigilant in ensuring that a defendant has made a sufficient showing.
And as Gill pointed out, Smith roasted Trump’s behavior with classified documents in torpedoing another prong in the “selective prosecution” argument:
None of the purported comparators the defendants identify is similarly situated.
There have been many government officials who have possessed classified documents after the ends of their terms in office—often inadvertently, sometimes negligently, and very occasionally willfully. There have also been a very small number of cases in which former government officials who have 4
Although the defendants cite (ECF No. 300 at 7) the first part of this test (“the same basic crime in substantially the same manner”), they entirely omit the test’s other requirements, including that “the evidence [against the comparator] was as strong or stronger than that against the defendant.” Smith, 231 F.3d at 810. Case 9:23-cr-80101-AMC Document 337 Entered on FLSD Docket 02/26/2024 Page 7 of 12 8 been found in possession of classified documents have briefly resisted the government’s lawful efforts to recover them.
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.
