Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, in Washington (AP Photo/Jacquelyn Martin). Right: Trump waits for the start of proceedings in his trial at Manhattan criminal court, Tuesday, May 14, 2024, in New York (AP Photo/Craig Ruttle, Pool).
Special counsel Jack Smith says his office has almost nothing more to share with Donald Trump’s defense attorneys in the Jan. 6 case.
On Oct. 16, U.S. District Judge Tanya Chutkan dispensed with numerous outstanding defense motions intent on prying various bits of information away from the government. In a mixed-bag ruling, the court granted Trump’s requests in part — and denied them in part.
Late last November, Trump’s attorneys filed two separate motions at issue in the present order. The first motion aimed to compel the government to produce certain discovery materials. The second motion sought to force the government to clarify the scope of — meaning a list of anyone involved with — the prosecution team. In the court’s 50-page order, both of those outstanding defense motions were essentially split down the middle. Chutkan offered specific guidance for the government to comply with each defense request.
In a Friday discovery certification, the government said there was very little in their possession that satisfied those discovery obligations.
“Specifically, while rejecting the vast majority of the defendant’s unfounded demands, the Court ordered the Government to search for and produce any additional discovery within its possession that fit three discrete categories of information,” the certification reads. “Pursuant to the Court’s order, the Government carefully reviewed its holdings regarding these three categories and has nothing further in its possession to produce to the defendant.”
The special counsel lists those three categories as follows:
(1) certain “records related to the testimony of a former Director of National Intelligence (‘DNI’)”
(2) “information about security measures that was conveyed to Defendant during his meeting with General Milley and Acting Secretary Miller” in early January 2021, and
(3) “‘evidence relating to unauthorized retention of classified documents by Vice President Mike Pence.'”
Smith, of course, recently released several pieces of information relevant to Pence — in an appendix to the government’s presidential immunity brief. Those documents spanned over 1,000 pages and featured several sections from the former vice president’s memoir, “So Help Me God.”
In the book, Pence recounts how the 45th president pushed him to be “tough” and overturn the election based on the theories of John Eastman, after campaign lawyers and other outside attorneys, such as Rudy Giuliani and Sidney Powell, failed to achieve that result through court challenges.
Trump fought to keep the four-volume appendix from seeing the light of day until after the upcoming general election.
While Chutkan disregarded the former president’s concerns about the impact of such information on the election, her most recent order instructed the government to be relatively forthcoming — while largely denying the defense’s demands for discovery on several issues.
To that end, Smith was ordered to produce documents that exist which relate to “the prosecution team” inclusive of a somewhat broader than usual definition which, Chutkan wrote, “include[s] added entities, personnel, or files beyond the Government’s operating definition.”
Smith says there isn’t much that satisfies such a definition. But, he added, that the government “in an abundance of caution,” earlier on Friday, “produced to the defendant a small number of additional materials.”
The certification explains:
[T]he Government produced to the defendant earlier today a small volume of materials that likely are not discoverable but that the Government obtained from the United States Attorney’s Office for the District of Columbia. Today’s production was accompanied by other discovery not implicated by the Court’s order. The Government has no additional discoverable material to produce from Special Counsel’s Office or Department of Justice Office of Inspector General personnel who previously participated in the investigation. Nor does the Government have any additional discoverable material to produce from the FBI’s Washington Field Office, whether from personnel currently or previously assigned to this investigation or “any other investigative case files maintained by the Field Office that are related to Defendant’s charged conduct.”
In other words, the special counsel insists the late-coming discovery was not particularly large, not particularly relevant, and contained even more documents than what the court actually instructed.
Smith’s motion also stakes out a request for more time.
In the court’s order, the government was ordered to produce certain witness statements — which must be given to the defense under federal law — but given the option of asking for a later deadline to produce them.
The special counsel availed itself of that option — arguing that the still-uncertain timeframe of the case makes it difficult to otherwise comply.
“Currently, there is no trial date and it is unclear when trial will be set, pending any appellate review of the Court’s forthcoming immunity determinations,” the certification concludes. “Accordingly, the Government respectfully requests that the Court set as an alternative date for the Government’s production of additional Jencks Act materials the same date as the parties’ final witness lists are due, once the Court reinitiates the pretrial schedule.”
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