Special counsel: Trump’s ‘deception’ on classified docs distinguishes him from Biden, Clinton and Pence
By Josh Gerstein and Kyle Cheney
Donald Trump’s efforts to thwart a federal investigation into his hoarding of national security secrets set him apart from other political figures who’ve faced allegations of mishandling classified information, including President Joe Biden, Hillary and Bill Clinton, Mike Pence and James Comey, special counsel Jack Smith said in a court filing Thursday.
Rather than serve as evidence that Trump is being singled out by politically motivated prosecutors, Smith contends that the long list of figures — most of whom never faced any charges — underscores the egregiousness of Trump’s conduct, which was “aggravated” by his monthslong refusal to return the documents.
“While each of them, to varying degrees, bears a slight resemblance to this case … none is alleged to have willfully retained a vast trove of highly sensitive, confidential materials and repeatedly sought to thwart their lawful return and engaged in a multi-faceted scheme of deception and obstruction,” prosecutors argued in a 29-page brief. “There is no one who is similarly situated.”
Smith painted Trump as a notorious exception to the rule in an effort to rebut arguments from the former president’s lawyers that he’s being unfairly singled out for prosecution in the pending criminal case in Florida that threatens to disrupt Trump’s bid to return to the White House.
Judge Aileen Cannon is currently mulling whether to start a trial of the former president this summer on charges of willful retention of national security information, obstruction of justice and scheming to mislead investigators, or whether to put any trial off until after the November election.
Also pending before Cannon are a series of motions from Trump asking the judge to throw out the case altogether. Smith’s brief was one of several filings Thursday in which the special counsel responded to those motions.
The other prominent officials who’ve landed in hot water in connection with classified records, the special counsel argued, often cooperated with investigators and invited FBI scrutiny.
Smith conceded that Biden’s handling of classified materials has “superficial similarities” to Trump’s actions. Both men stored classified documents in cardboard boxes at their personal residence. And both allegedly shared classified materials with ghostwriters. But Trump stashed his documents at his “social club” accessed by hundreds of patrons, the prosecutor wrote, and then engaged in a campaign of “deception” to prevent investigators from recovering them.
In the same filing, Smith also sharply rejected the suggestion that Biden had any role in causing the criminal case to be filed against his archrival.
“Trump appears to contend that it was President Biden who actually made the decision to seek the charges in this case; that Biden did so solely for unconstitutional reasons; and that this decision was somehow foisted on the Special Counsel through a newspaper article, a press conference, and an interview that each preceded the Special Counsel’s appointment,” Smith writes. “That theory finds no support in evidence or logic. Indeed, the very sources Trump relies on undercut his claim.”
The brief is Smith’s most forceful attempt to date to distinguish Trump from the many political figures he has often invoked to suggest he is being treated unfairly.
Smith also noted that Trump’s own words on social media show that he was well aware that he had the materials after he left the White House. Trump, for instance, claimed on Truth Social that he did so “openly and transparently” and that he had “declassified” them.
There appears to be no evidence beyond Trump’s public statements that he took any steps to declassify the materials in question.
“If he persists in these declassification claims, that, too, would provide additional evidence that he knowingly possessed the documents,” Smith argued.
Smith also swatted down Trump’s effort to claim he was “immune” from the charges because of his role as president, a contention the special counsel called “so wholly without merit that it is difficult to understand it except as part of a strategic effort for delay.”
An appeal by Trump on the immunity issue has waylaid Smith’s other criminal prosecution of the former president: a case charging him with conspiracy to overturn the results of the 2020 presidential election. Trump’s presidential immunity claims in that case struck out with lower court judges, but the Supreme Court recently agreed to hear his arguments on the issue late next month. Trump’s trial in that case is postponed until the high court rules.
In the flurry of filings in the classified-documents case Thursday, Smith also rejected claims that his own appointment by Attorney General Merrick Garland was invalid and pushed back on Trump’s argument that the Presidential Records Act authorized him to stash the classified materials at his home by designating them “personal.”
In fact, Smith contended, Trump never made such a designation while he was president, and his decision to return 15 boxes of material to the National Archives after months of negotiations proves he didn’t view the records as his personal property.
Trump compared the records he allegedly refused to return to a set of audiotaped interviews that former President Clinton kept in a White House sock drawer. National Archives officials acquiesced in an apparent decision by Clinton to deem the recordings personal and not part of his official presidential records.
Prosecutors contended that Trump’s comparison is absurd and that the discussions Clinton had on the tapes with author Taylor Branch were considered akin to diaries that government officials have traditionally been permitted to retain after leaving office, while the documents Trump allegedly kept at Mar-a-Lago included detailed war plans, nuclear secrets and more.
“Trump did not create them, they do not reflect his personal thoughts, they came into his possession only through his official duties, and (except for one charged document) bear classification markings. They have no resemblance to diaries,” Smith’s team wrote.
Shortly after Smith submitted his filings, Cannon announced she plans to hold a hearing next Thursday on Trump’s motion to toss out the case due to the Presidential Records Act and on another motion claiming the willful retention of classified documents charges against him are unduly vague.
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