Special Counsel Smith admits prosecutors failed to turn over all required material, same crime Trump is charged with

 August 2, 2023

Among the dozens of criminal counts in the so-called "documents" case against former President Donald Trump are charges related to the accusation that Trump falsely told the federal government that, as required, he had turned over all materials that had been requested, when, in fact, he had not.

In a development that serves as the definition of irony, Special Counsel Jack Smith's team admitted to a federal court this week that it had failed to turn over all required materials to the defense despite falsely claiming otherwise previously, Breitbart reported.

In other words, the special counsel's team just got caught doing the exact same thing that it is prosecuting the former president for doing.

Prosecution's prior claims were "incorrect"

On Monday, Special Counsel Smith's team submitted a 4-page supplemental filing with regard to the court's discovery order, which entails turning over to the defense all of the material that the prosecution might use during trial.

Among that material was surveillance camera footage from former President Trump's Mar-a-Lago resort that was obtained by the government via a subpoena.

"On July 27, ... the Government learned that this footage had not been processed and uploaded to the platform established for the defense to view the subpoenaed footage," the special counsel team acknowledged.

The filing added, "The Government’s representation at the July 18 hearing that all surveillance footage the Government had obtained pre-indictment had been produced was therefore incorrect."

Requirement that all material in prosecution's possession be turned over

Breitbart noted that what Special Counsel Smith's team admitted in the recent filing could be construed as a violation of what is known in criminal trials as the "Brady rule."

That rule derives from the Supreme Court's 1963 Brady v. Maryland decision, which held that "The government's withholding of evidence that is material to the determination of either guilt or punishment of a criminal defendant violates the defendant's constitutional right to due process."

As such, prosecutors are now required to "disclose material, exculpatory information in the government's possession to the defense," especially including "any information favorable to the accused which may reduce a defendant's potential sentence, go against the credibility of an unfavorable witness, or otherwise allow a jury to infer against the defendant’s guilt."

Initially, defense teams needed to specifically request that such material be turned over by prosecutors, but in a subsequent ruling the Supreme Court clarified that "the prosecution has a constitutional duty to disclose all material, favorable information in their possession to defendants regardless of whether it is requested."

Doesn't matter if material was "withheld intentionally or unintentionally"

The key point here by which Special Counsel Smith's team may have run afoul of the rule -- and have no ground to excuse the oversight as incompetence or a mistake -- is that the Supreme Court's clarification made clear that the Brady rule's requirements are "breached regardless of whether that information is withheld intentionally or unintentionally."

Given that Brady rule violations can result in constraints placed upon the prosecution, mistrial declarations, or the overturning of convictions -- if not also sanctions for prosecutors if they withheld information "intentionally or knowingly," it will be interesting to see how Trump's defense team and the judge overseeing the case respond to this admission from the special counsel's team.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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