Trump's attorneys rip Special Counsel Smith for excessive secrecy and withholding evidence in classified documents case

 December 29, 2023

In former President Donald Trump's classified documents case, his attorneys have accused Special Counsel Jack Smith of withholding both classified and unclassified evidence he plans to use at trial and of engaging in secretive "ex parte" hearings with the court about that evidence in which the defense attorneys are not participants.

Trump's attorneys filed a motion on Wednesday that slammed Smith and his prosecutors for their efforts to hide documents and evidence behind classified procedures and urged the court to allow them appropriate access, according to Newsweek.

The former president faces 37 criminal charges related to his supposedly unlawful retention of government documents after leaving office in 2021, some of which were purportedly still classified despite Trump's declassification claims, that were later seized by the FBI during the infamous and unprecedented raid of Trump's South Florida Mar-a-Lago resort in August 2022.

Special Counsel demands extreme secrecy in classified documents case

According to the docket in U.S. v. Trump, Special Counsel Smith filed on Dec. 6 a notice of motion under Section 4 of the Classified Information Procedures Act, or CIPA, which governs how classified materials are handled in court but kept the content of that motion secret from the defense team.

Defense lawyers countered that same day with a motion demanding access to the materials in the secret filing but Smith in turn filed a motion of opposition on Dec. 20 which argued that none of the defense attorneys or defendants had a right of access or "need-to-know" with respect to the evidence included in the earlier motion.

A week after that response from Smith, Trump's attorneys filed another motion "in further support of" their initial motion that insisted upon being granted access to the evidence, both classified and unclassified, that prosecutors intended to use in the trial but have thus far kept hidden from the defense.

Smith allegedly withholding evidence from Trump's attorneys

In Wednesday's 12-page filing, former President Trump's attorneys observed that the documents in question had been "originally classified" and "available" to Trump when he was the president, and wrote, "Under those circumstances, it is extraordinary, unprecedented, and improper for the Special Counsel’s Office to try to withhold such information from the defense as the Office seeks to use this prosecution to target the leading candidate in the 2024 presidential election."

"In light of the Court’s Protective Orders, the volume of similarly sensitive classified discovery, and defense counsel’s track record of compliance in this case, there is no merit to the Office’s contention that President Trump’s cleared counsel should not be granted attorneys’-eyes-only access to the CIPA § 4 materials so that the Court has the benefit of adversarial proceedings while evaluating these complex issues," they continued.

Trump's lawyers proceeded to slam Smith for his "prior misrepresentations and misleading arguments to the Court" and his "meritless contentions" that they should be barred from viewing the materials in question, as well as his frequent use of ex parte hearings that they described as "an inappropriate preference for one-sided proceedings that are hidden from the public in order to serve political motivations and Intelligence Community bias."

They further noted that Smith's office had acknowledged that "some" of the materials being kept hidden were unclassified as well as that they would turn over that evidence to the defendants "closer to trial" but never fully addressed "why the delay is necessary to accommodate any valid interest."

Trump's team shreds special counsel's secrecy arguments

Former President Trump's attorneys were far from finished, though, as the scathing motion went on to rip Special Counsel Smith for his "frivolous" claims and "meritless" arguments in favor of continued secrecy even after admitting that not all of the materials in the secret CIPA § 4 motion were classified or needed to be kept hidden.

"The Special Counsel’s Office cannot avoid disclosure of an entire filing based on the vague claim that 'some' -- but apparently not all -- of the unclassified paragraphs in its submission would 'risk revealing classified information,'" they wrote. "The Office makes no effort to identify which paragraphs they are referencing, or to explain the purported “risks” that would arise from the attorneys’-eyes-only disclosures that President Trump seeks."

"Like the earlier motion, this is another example of a casual argument made by prosecutors who have grown too comfortable operating in the shadows and away from defense scrutiny, and overly solicitous of Intelligence Community preferences for clandestine filings," Trump's attorneys added.

After thoroughly shredding Smith's other arguments denying the defense's "need-to-know," his preference for ex parte proceedings, and refusal to even list the legal authorities his office has cited, Trump's attorneys concluded, "For the foregoing reasons, as well as the reasons in the opening brief, President Trump respectfully submits that the Court should order the Special Counsel’s Office to provide his cleared counsel with attorneys’-eyes-only access to all CIPA § 4 submissions, and to file redacted versions of those submissions on the public docket."

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