Legal scholar: New Jack Smith filing exposes Trump's "frivolous" defense

Jack Smith; Donald Trump Photo illustration by Salon/Getty Images
Jack Smith; Donald Trump Photo illustration by Salon/Getty Images
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Prosecutors from special counsel Jack Smith’s office told a judge last week that defense lawyers representing former President Donald Trump in the classified documents case had painted an “inaccurate and distorted picture of events” and accused the defense of unfairly attempting to "cast a cloud of suspicion" over government officials carrying out their duties.

Their comments came in a court filing that addressed a request from the Trump team last month aiming to compel prosecutors to hand over certain documents that they claim will serve as evidence of bias and misconduct related to records that were retrieved from the ex-president’s Mar-a-Lago residence, The Associated Press reported.

The prosecutors in the filing said that discovery requests should be grounded in specific demands directly relevant to the case, necessary for preparing the defense. They criticized Trump's team for seeking records “based on speculative, unsupported, and false theories of political bias and animus.”

“The defendants rely on a pervasively false narrative of the investigation’s origins,” the prosecutors wrote. “Their apparent aim is to cast a cloud of suspicion over responsible actions by government officials diligently doing their jobs. The defendants’ insinuations have scant factual or legal relevance to their discovery requests, but they should not stand uncorrected.”

They contended that the government faced an “extraordinary situation” with a former president engaging in “calculated and persistent obstruction of the collection of Presidential records,” which belonged to the United States. The records included a “trove of highly classified documents containing some of the nation’s most sensitive information,” which the law required to be collected.

The former president is facing dozens of felony charges in a federal court in Florida, alleging the unlawful handling of classified documents at his Mar-a-Lago estate and impeding government attempts to recover them.

It is “commonplace” in criminal litigation that when the defense has a “weak case,” they attack the prosecutor, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. Here, the defense is claiming that the prosecution had failed to disclose evidence that Trump had a security clearance to retain documents at Mar-a-Lago and that the White House and other federal agencies possessed critical but undisclosed information relevant to the defense case.

With a "friendly" judge, they believe their attack might work and impact their ability to delay the proceedings, Gershman explained. For this reason, the prosecution provided such a “lengthy and scrupulously” detailed response.

“The response was intended to show that the defense’s arguments are frivolous and an attempt to obfuscate, distort, and confuse the facts about Trump’s unlawful conduct,” Gershman said. “The prosecutor’s response detailed the extraordinary volume of materials already given to the defense.”

This includes 1.28 million pages, hundreds of hours of video footage, identities and descriptions of the 48,000 guests at Mar-a-Lago between January 2021 and May 2022, details of the FBI investigation and search, and a showing that while classified documents were on Trump’s property, only a handful of Trump’s guests, 2,200, had their names checked and passed through magnetometers, Gershman explained.

In their response, prosecutors criticized the defense's requests as vague and often indecipherable, the AP reported. In some cases, they said that they had already provided extensive information to the defense.

Trump's legal team demanded disclosure of information about "temporary secure locations" at Trump properties to counter claims of Mar-a-Lago not being secure as well as to reveal Secret Service measures.

However, prosecutors contend they have already provided thorough details about secure facilities and protective measures that were taken for Trump and his family at residential locations.

They also suggested that the provided records might not favor Trump's defense, pointing to testimony from “multiple Secret Service agents stating that they were unaware that classified documents were being stored at Mar-a-Lago, and would not be responsible for safeguarding such documents in any event.”

This would show Trump’s “effort to conceal documents” he possessed even from the Secret Service and “raise an incriminating inference of his consciousness” that his conduct was “unlawful,” Gershman explained.

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The mention that Secret Service agents were unaware of classified documents being stored at Mar-a-Lago “introduces questions” about the “security protocols and potential breaches” of classified information handling, trial attorney Tray Gober told Salon. In legal terms, the Secret Service's knowledge, or lack thereof, could factor into arguments regarding the intent behind the storage of classified documents.

However, “culpability” in cases involving mishandling classified information “often hinges on the accused's knowledge and actions rather than third-party awareness," Gober said.

While the trial is currently scheduled for May 20, there is a possibility of it being postponed.

Several factors could contribute to such a decision, including discovery disputes, the complexity of the case and the need for thorough preparation by both parties, Gober explained. Delays in high-profile cases are not “uncommon” and can be “strategic” for both the prosecution and defense, allowing more time for evidence gathering, negotiation of plea deals or legal maneuvering.

But Gershman thinks that the delay would serve as an advantage for the former president.

“He wants to run out the clock before the election, and then if elected, scheme to have the charges dismissed,” Gershman said. “Delays in discovery, and claims of prosecution overreach, which is what Trump’s defense is orchestrating, seek to accomplish his objective.”