Jack Smith Pounds Trump For His Unprecedented Conduct In MAL Case
INSIDE: Fani Willis ... Alvin Bragg ... Alexander Smirnov
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
No One Has Ever Done What Trump Did
Special Counsel Jack Smith unleashed a tight, targeted fusillade in the Mar-a-Lago case, making the convincing argument that former President Donald Trump’s actions in concealing his possession of national security information were unprecedented in the annals of classified document cases.
The new filing from Smith came in response to Trump’s claim that he is the victim of selective and vindictive prosecution and is thus entitled to all sorts of pre-trial discovery that would normally be off limits to a criminal defendant.
Not only not true, Smith argued, but there is no other similarly situated criminal defendant on record because no former government official has ever done what Trump stands accused of doing. Let me excerpt the key passage from the filing at length:
There have been many government officials who have possessed classified documents after the ends of their terms in office—often inadvertently, sometimes negligently, and very occasionally willfully. There have also been a very small number of cases in which former government officials who have been found in possession of classified documents have briefly resisted the government’s lawful efforts to recover them. But there has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s. He intentionally took possession of a vast trove of some of the nation’s most sensitive documents—documents so sensitive that they were presented to the President—and stored them in unsecured locations at his heavily trafficked social club. When the National Archives and Records Administration (“NARA”) initially sought their return (before learning that they contained classified national defense information), Trump delayed, obfuscated, and dissembled. Faced with the possibility of legal action, he ostensibly agreed to comply with NARA’s requests but in fact engaged in additional deception, returning only a fraction of the documents in his possession while claiming that his production was complete. Then, when presented with a grand jury subpoena demanding the return of the remaining documents bearing classification markings, Trump attempted to enlist his own attorney in the corrupt endeavor, suggesting that he falsely tell the FBI and grand jury that Trump did not have any documents, and suggesting that his attorney hide or destroy documents rather than produce them to the government. Failing in his effort to corrupt the attorney, Trump enlisted his trusted body man, codefendant Waltine Nauta, in a scheme to deceive the attorney by moving boxes to conceal his (Trump’s) continued possession of classified documents. As a result, Trump, through his attorney, again returned only a portion of the classified documents in his possession while falsely claiming that his production was complete. The obstructive conduct even persisted from there. In June 2022, knowing that he had arranged for Nauta to move boxes to conceal them from Trump’s attorney, and knowing that the government had subpoenaed the security video footage that would reveal that surreptitious box movement, Trump, now joined by not only Nauta but also codefendant Carlos De Oliveira, attempted to have the information-technology manager at Mar-a-Lago delete the video footage that would show the movement of boxes.
Smith’s filings in the Mar-a-Lago case have seemed to me to become tighter and more streamlined. That is to be expected to an extent as prosecutors become increasingly familiar with the particulars of their case over time. But I suspect they realize they need to simplify and focus their arguments for the benefit of U.S. District Judge Aileen Cannon, who is deeply inexperienced and unfavorably disposed to the prosecution’s case.
I also wonder if they have detected in their dealing with her a receptiveness to some arguments more than others. Or maybe it’s merely that Trump’s argument that nothing like this has ever happened to any other former president is best met by the counterargument that no president – or any other government official – has ever behaved like this.
Big hearing in the Mar-a-Lago case Friday. Stay tuned.
Ruh-Roh
A pretty big development in the Georgia RICO case. It appears that after a closed-door session in chambers yesterday, state Judge Scott McAfee was not satisfied that certain communications between special prosecutor Nathan Wade and his divorce attorney were protected by attorney-client privilege. McAfee alerted the parties late yesterday via email that he will hear more testimony from attorney Terrence Bradley in open court today at 2 p.m. ET.
This will mark a resumption of Bradley’s testimony from the week before last, much of which was stymied by invocations of attorney-client privilege. Bradley was called by defendants to try to establish that the romantic relationship between Wade and DA Fani Willis began before she hired him to oversee the RICO case – which would also implicate Wade and Willis in misleading or lying to court about the circumstances of their relationship.
What does Bradley know? It’s not clear! But the fierce effort by Willis and Wade to keep Bradley from testifying and to impugn him by bringing up a sexual assault claim against him by a client suggests they really don’t like what he has to say. It’s also possible – we don’t know! – that the worst of what Bradley could say is still protected by attorney-client privilege.
All of this in an effort by Trump and his co-defendants to disqualify Willis from the case. We’ll have coverage of the Bradley testimony this afternoon.
Proactive!
Manhattan District Attorney Alvin Bragg is seeking a gag order against Donald Trump to protect witnesses, jurors, and court staff in the hush money trial set to begin next month.
Trump Appeals Massive Civil Judgment Against Him
Donald Trump took the first step toward appealing the $355 million civil-fraud ruling against him in New York. Other steps to watch for in the coming days:
State Attorney General Letitia James starting to enforce the judgment next month.
Trump asking an appeals court to stay enforcement of the judgment.
Failing that, Trump posting an enormous bond (if he can get one) equal to the judgment to forestall James from executing on the judgment while the appeal plays out.
Smirnov Detained For Now
The former FBI informant under indictment by Special Counsel David Weiss for spreading misinformation about the Bidens will remain in custody pending trial, a federal judge in California has determined.
How IVF Broke Republicans
Brian Beutler: IVF And The Faithlessness Of The GOP
TPM’s Nicole Lafond: Republicans Increasingly Reveal They Barely Know Where Babies Come From
Aaron Blake: Alabama IVF exposes GOP buyer’s remorse on ‘personhood,’ following IVF ruling
Florida lawmakers postpone ‘fetal personhood’ bill after Alabama IVF ruling
SCOTUS And Social Media Content Moderation
TPM’s Kate Riga: “[P]erhaps the most interesting moments in the proceedings arose when the right-wing justices’ long-held reflexive positioning came into conflict with a newer strain of their ideology: old-school, free market, pro-business conservatism vs. the new age, Trumpian culture wars.”
2024 Ephemera
NYT: The Back Channel Talks to Secure McConnell’s Endorsement of Trump
Philip Bump: Trump’s primary strength probably isn’t a sign of his weakness
Rep. Matt Rosendale (R-MT) is threatening legal action against former Sen. Heidi Heitkamp (D-ND) for gossiping on Harry Litman’s podcast that Rosendale dropped out of the Montana Senate race after a week because he had impregnated a 20-year-old staffer.
Grim
The 25-year-old senior airman in the Air Force who died after setting himself ablaze Sunday outside the Israeli embassy in Washington as a protest in support of Gaza was raised in a religious compound in Orleans, Massachusetts, and self-identified as an anarchist, the Washington Post reports.
The Radical Shift Coming In The Auto Industry
It’s not just the shift from internal combustion engines to EVs. It’s the emergence of China as a car manufacturing powerhouse, following in the footsteps of Japan and Korea. Those who follow this stuff closely have been heralding the coming transformation of the international auto market for quite a while now. Robinson Meyer has a good introduction in today’s NYT.
Honey, I Insider-Traded Your Merger
Matt Levine: “I think that’s the worst insider trading case I’ve ever read?”
Boom
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That quote from the Smith filing is fascinating. There seems to be an implication — maybe an avoidable one — that Cannon doesn’t recognize or is in denial about the defendant/her benefactor/her party’s leader so yeah, clarification is needed. There’s a point at which she maybe has to cut the crap. And because I love my pet theory about the MAL case, maybe there actually is some proof of let’s say fPOTUS making deals re the classified materials with a message to Cannon that if she doesn’t start doing her job. If she doesn’t, Smith will have to go there and that could be ugly.
And to be clear about my paranoid nuts theory: I can’t see fPOTUS taking the materials at issue and not monetizing them, or at least using them to impress the few people of which he’s envious, like MBS and Putin. I know, sounds crazy. But that’s what fPOTUS has always been…
Anyway, barely related question: other than as an issue raised requiring verification or not, what does the Willis/Wade have to do with the case? And if anyone’s getting disqualified, it’s not going to be Willis. So either I’m correct or I’m missing something. If it’s the latter, what?
I'm so curious, and have never seen this question asked: who was running NARA while all of this happened, and why didn't they know exactly which documents were in his possession at any particular moment? I imagine it as a lending library that contains some items that are mind-blowingly dangerous, and I wonder why they wouldn't have a checkout system at least as robust as my local library, which knows exactly what books are in my possession at any time. Heck, even if I moved away (def not to FL), they'd know I still hadn't returned their copy of Crime and Punishment. Why did NARA let that buffoon keep taxpayer property, especially such dangerous property?