Background: Special counsel Jack Smith (AP Photo/Jacquelyn Martin, File)/ Inset: Donald Trump in New York on October 2, 2023. Photo by Lev Radin/Sipa USA)(Sipa via AP Images)
Special counsel Jack Smith urged the federal judge presiding over Donald Trump's Mar-a-Lago willful retention of classified information prosecution to reject "distorted and exaggerated" arguments about access to classified discovery and deny the former president's bid to push the case past the 2024 election.
In the Monday filing, Smith said that U.S. District Judge Aileen Cannon, a Trump appointee, should deny the bid to delay trial until after the election just as she did months before when setting trial for May 20, 2024.
Last week, Trump's criminal defense attorneys Christopher Kise and Todd Blanche asked Judge Cannon to move the trial "until at least mid-November 2024, in light of additional, ongoing discovery failures by the Special Counsel's Office."
The lawyers asserted that the special counsel was in "non-compliance" with his discovery obligations, leaving the former president with a "lack of access" to "basic discovery."
Smith and his team responded Monday by saying that characterization of the status quo is "unfounded," "distorted and exaggerated," and non-credible.
"To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case," the special counsel said in one part of his opposition to the Trump-requested trial adjournment. "But the defendants' allegations that those logistical impediments are the fault of the SCO are wrong."
Smith said that Trump has, to date, been given "extensive, prompt, and well-organized unclassified discovery, yielding an exhaustive roadmap of proof of the detailed allegations in the superseding indictment."
"The vast majority of classified discovery is also available to the defendants," the special counsel continued. "For a small fraction of the discovery that is among the most highly classified material, certain enhanced security protocols have raised additional obstacles to full access."
Here's what Smith says Trump's defense already has in its possession:
The facts are that on June 21, 2023, eight days after Trump was arraigned, the Government produced to him some 800,000 pages of unclassified discovery, including, among other material, identification of approximately 4,500 pages of key documents; all grand jury testimony to date; witness statements through May 12, 2023; evidence obtained through search warrants and subpoenas; search warrants and applications; and CCTV footage from Mar-a-Lago obtained prior to May 2023 with key footage identified. The Government would have simultaneously made the same production to defendant Waltine Nauta, but his counsel was not yet admitted. The day that happened, July 6, the Government made its first production to Nauta.
On July 17, the Government produced its second unclassified production to Trump and Nauta, consisting of some 300,000 pages, including among other things witness statements between May 12 and June 23, 2023, and relevant content from three electronic devices. On July 31, the Government made its third production to Trump and Nauta, consisting of approximately 7,000 pages, including witness memorialization and grand jury transcripts resulting from the superseding indictment, as well as the remainder of the CCTV footage. As for defendant Carlos De Oliveira, the Government produced the same three productions to him on August 11, the day after he was arraigned. With the Government's latest production of unclassified discovery on October 6—more than seven months before trial—it has produced all unclassified discovery of which it is aware, aside from certain agents' communications—specifically, emails and text messages—that could constitute Jencks material at trial.
The special counsel said that the Trump team has offered "no credible justification to postpone a trial that is still seven months away." Smith added that any lingering issues over a "small portion of the classified discovery […] subject to issues related to where it may be stored, discussed, and reviewed" could be resolved "shortly."
For a small fraction of the discovery that is among the most highly classified material, certain enhanced security protocols have raised additional obstacles to full access. As to those materials, the Classified Information Security Officer ("CISO") has advised the Government that he expects even those materials to be available for review and discussion by cleared counsel this week.
In closing, Smith reiterated that the Trump team's "distorted and exaggerated" claims about "their inability to review classified information" should be denied.
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