Special Counsel Whacks Trump For Claims That His Theft Of Docs Is Just Like Biden

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Under the best of circumstances, prosecuting Donald Trump is a game of whack-a-mole. His lawyers are constantly poking their heads out to shout “Witch Hunt!” or “Election interference!” or “Donald Trump is immune for crimes if the Senate doesn’t convict!”

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Conditions in Judge Aileen Cannon’s courtroom are far from “best,” which is how the special counsel found himself yesterday having to explain that President Biden calling up the FBI when he discovered classified docs in his garage, returning them immediately, consenting to a search, and then sitting down for an interview with Special Counsel Robert Hur is not the same as Trump refusing to return classified documents, defying a subpoena, and then sending his goons to try to delete the evidence.

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The kerfuffle began in January when Trump’s lawyers filed a bonkers motion to compel predicated on the theory that the entire executive branch — more or less — was part of the “prosecution team,” and thus subject to discovery obligations under Brady. Trump demanded vast swathes of information, much of it classified, from agencies as diverse as the National Archives, the National Security Council, the White House Counsel’s Office, and the Department of Energy. He also wanted internal prosecutorial deliberations to prove that the case is being directed by Joe Biden as part of a Deep State op to beat him in the November election.

The government responded that Trump’s lawyers were confused about a lot of things, including the legal definition of “prosecution team” and also BRADY, HOW DOES IT GO?

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Trump’s lawyers fired off an absolutely batshit “reply brief” making wild, new claims of prosecutorial bias and demanding evidence to support their upcoming motion for dismissal based on selective and vindictive prosecution. Trump pointed to the recent decision not to prosecute Biden for retaining classified documents, as well as earlier failures to prosecute Bill Clinton, Hillary Clinton, Mike Pence, and James Comey, as evidence of selective prosecution.

As we wrote at the time:

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Sure a reply brief is supposed to reply and not introduce new evidence. And, okay, if you want to get technical, there’s, like, a legal standard for selective and vindictive prosecution and you don’t just get to yaddayaddayadda over it by claiming you’ve made a “prima facie” showing and are entitled to delve into prosecutorial communications. But when you’re a billionaire comparing yourself to Yick Wo, sometimes the legal niceties like basic civil procedure fall by the wayside.

Which is more or less what the government said when it requested that the court allow it to file a surreply, since Trump had introduced a whole new set of legal theories and facts in his response. And so yesterday, the prosecutors whacked that particular mole hard.

First they noted that they’d be addressing the selective and vindictive prosecution claims at length in response to the actual motion to dismiss for selective and vindictive prosecution which Trump filed last week. But they did observe that the Supreme Court set the standard for discovery under a selective prosecution claim in 1996, and no defendant in the 11th Circuit has managed to meet it since.

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They heap even greater scorn on Trump’s blithe assurance that he’s proved selective prosecution by locating a similarly situated comparator who was treated differently, i.e. the current president.

[T]here 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.

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Well, when you put it like that …

Of course this is Judge Cannon’s courtroom, so perhaps Trump’s gonzo claims will win the day.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

 

Topics

Crime, Donald Trump, Government, Jack Smith, Joe Biden