What Is Happening With Regard to the Timing of the Trial In the Florida Documents Case?
While the Anti-Trumpers claim that the Judge is in the tank for the former POTUS, it looks to me like SCO Jack Smith's failure to do his job as required by law is the cause for the delay.
After a long period of seeming inactivity, with many filings having been by the parties under seal, and with most pretrial hearing dates vacating — but with May 20, 2024, trial date remaining — the past two weeks have seen a series of rulings by the Judge on the Florida “Documents” case brought against former President Trump by Special Counsel Jack Smith that have revealed several mini bombshell disclosures found in some pending motions. Most interesting to me are the motion to compel discovery premised, in part, on a claim that the “prosecution team” is broader and includes more federal agencies that the Smith SCO has been representing to the Court.
This issue is more consequential than is appreciated in most of the reporting so far on what the unsealed filings are now beginning to reveal.
Readers should keep in mind that some of these filings have been before the Court, under seal, for weeks/months. The Judge has known what is in them, as well as the responses filed to them by SCO Smith. It is only the public that is learning about their contents for the first time. The actions taken by the Judge over the past few months now must be reconsidered against the backdrop of what has been known to her, as compared to the criticism heaped upon her by the lefty legal beagles who have been relentlessly claiming she is shaping her decision-making so as to assist Trump by keeping the case from getting to trial before the election.
It was easy to make that allegation without the motions and responses as context for her decisions. There didn’t seem to be any obvious reason for her decisions to repeatedly postpone dates and deadlines — and eventually vacate many of them — while leaving the May 20 trial date in place. But I suspect she did that to demonstrate the absurdity of the SCO’s demand for a trial date less than one year after filing the case given the issues that have now developed — many created by the Smith’s SCO in the choices made to prioritize speed and expediency over thoughtful handling of complex matters in order to avoid the kinds of problems now being brought to light. These issues, are largely the result of the accelerated processes employed by the SCO, DOJ, and FBI in careening through the investigation in order to secure an indictment early enough to maybe be able to get the case to trial before the Nov. 2024 election.
The motions and responses are complex and multi-faceted, spanning hundreds of pages. They cannot really be condensed effectively into a single story here — and a few screenshots from a handful of pages do not really give the insight necessary. So I’m going to focus on one particular issue in this article — the issue of the scope of the “prosecution team” and how that issue impacts discovery issues and the prosecutors’ ethical and constitutional obligation to not just produce — but to search for “exculpatory evidence.”
The Rules of Discovery and the production obligations for exculpatory evidence imposed on prosecutors by the Supreme Court in Brady v. Maryland both have a requirement that the material be “possessed” or “controlled” by prosecutors. Courts have ruled that prosecutors have no obligation to produce materials that are not in their possession, or materials that they are unaware of. If material is not in the prosecutor’s possession, but the prosecutor knows of it, the prosecutor must advise the defense of the existence and location of those materials in order to meet his/her burden.
“Possession” by federal prosecutors has been limited to actual possession by DOJ and the investigative agency of DOJ or other federal law enforcement agency(s) handling the case. “Possession” does not extend across the entire Department of Justice and every law enforcement component unless the prosecutors have actual knowledge of the materials. So the rules do not require federal prosecutors to canvass all of DOJ and its components in an effort to locate and produce discovery or excupatory materials.
But there is a very important caveat to this rule — a federal prosecutor is deemed to have “constructive knowledge” of any materials in his/her own possession or in the possession of any law enforcement agency participating in the investigation. “Constructive” knowledge imposes the same production obligation as “actual” knowledge — it means the prosecutor needs to seek out the material whether he/she knows about it or not. If he/she finds it, the material must be produced. If he/she fails to find it, the Court still considers the impact on the fairness of the trial given the failure to produce the material.
In Kyles v. Whitley, the Supreme Court addressed this very issue. Kyles was decided while I was with DOJ so it had a big impact on decision-making by prosecutors in how to staff and handle investigations going forward. Here is the key passage:
[S]howing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.”
Kyles was a state murder prosecution where the government had four witnesses who identified the defendant as the murderer. Another individual who had driven the car involved in the crime had implicated the defendant in the murder as well. That individual was never called as a witness.
But in a series of interviews with investigators that other individual made numerous inconsistent statements that called into question the truthfulness of his account implicating the defendant. These inconsistent statements were never produced by the prosecutors to the defense because the police never gave them to the prosecutors. The statements could have been helpful in the presentation of the defense which was based on mis-identification, with the driver of the car being the person who actually committed the murder.
The outcome of Kyles extended “knowledge” of favorable evidence to prosecutors who were, in fact, unaware of the evidence where that evidence was in the possession of a law enforcement agency that participated in the investigation but not communicated to the prosecutors.
In the aftermath of Kyles, a key issue in federal investigations became “What law enforcement agencies acted on behalf of the government?” The answer to that question defined the universe of information that the prosecutors would be deemed to have “constructive knowledge” of, and therefore an obligation to seek out and produce Rule 16 discovery and exculpatory information/evidence.
This brings us to the motion filed by the Trump defense attorneys in the Florida documents case.
The defense has sought to portray the criminal investigation of Trump as having started long before the Special Counsel was appointed. In fact, because the National Archives and Records Administration (NARA) sent a criminal “referral” to DOJ asking for a criminal investigation to be initiated over the issue of classified document “spillage”, Trump’s defense team has pinpointed that as the start of the Govenrment’s criminal investigation — which would then be the starting point for determining the who are the “others acting on the government's behalf in the case….”’
The issue has now “ripened” in the form of a motion for discovery. All three defendants in the Florida case are demanding that Smith’s SCO produce a greater volume of materials from several government agencies beyond that which has been produced thus far. The motion lays out a myriad of contacts and communications between DOJ, NARA, the White House Counsel’s Office, and different agencies making up the Intelligence Community, all concerning the issue of whether FPOTUS Trump had removed classified records and was keeping them in Florida. From the motion:
At the core of the pending discovery disputes is the failure of the Special Counsel’s Office to acknowledge the consequences for discovery of prosecutors’ extensive coordination and resource sharing with the White House, senior officials at DOJ and FBI, and numerous agencies in the Intelligence Community and other parts of the government. The Office cannot reap the benefits of these coordinated activities while ignoring exculpatory information and other discoverable evidence in the same offices.
These reviews and responses must include pertinent data from the classified systems used by the agencies, including the classified email accounts used by the prosecutors and their associates that are described in Part 1 of the Classified Supplement. By virtue of the Office’s access to the agencies’ files, the prosecutors must conduct a thorough review for Giglio and Jencks Act material before offering trial testimony from one of the agency’s employees—productions the Office promised long ago for every witness. As we have noted in filings since September 2023, responsive materials may ultimately need to be addressed through additional rounds of CIPA practice, but that is no surprise given the subject matter of this case.
“The Eleventh Circuit follows the ‘prosecution team standard,’ which considers the relationship between the government entity and the prosecutor’s office, looking at the nature of the assistance provided and the extent of cooperation on a particular investigation.” United States v. Saab Moran, 2022 WL 4291417, at *3 (S.D. Fla. Sept. 15, 2022) (cleaned up). The prosecution team includes entities that (1) “collaborate extensively” with the prosecution, United States v. Naranjo, 634 F.3d 1198, 1212 (11th Cir. 2011); (2) are “closely aligned with the prosecution,” United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992); (3) “functioned as agents of the federal government under the principles of agency law,” United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979); or (4) are “important to the investigation and to the evidence presented at trial,” United States v. Bryant, 2016 WL 8732411, at *23 (S.D. Fla. Oct. 27, 2016).
Without going into detail, I can say unequivocally that the D.C. Circuit does not have anywhere close to this level of specific authority in its existing case law about what constitutes the “prosecution team” in the aftermath of Kyles. I have briefed the scope of search and disclosure issues as part of the work done for Jake Chansley concerning whether favorable video evidence was not produced to his prior attorney in discovery. The case law on this subject is far more limited in the D.C. Circuit than what the defense has put before the Florida judge.
At the end of the day, it is the Florida judge’s judgment call about how broad the “prosecution team” should be defined, and then it is her judgment call about how this definition impacts the discovery obligations of Smith’s SCO based on the charges he has brought.
This is how the process of discovery and discovery disputes unfold:
Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, upon request the Government is obligated to provide certain materials in its possession, including a general description of “books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and the item is material to preparing the defense.” This material usually makes up the great bulk of discovery and it is given to the Goverment to discern in the first instance what items are “material to preparing the defense.” This is often a point of disagreement, with the Government taking a narrow view of what is “material to preparing the defense” and the defense taking a more expansive view in order to goad the Government into giving up more material than the Government wants to give up.
When informal discussions about additional discovery can’t resolve the dispute, the defense will normally make a written request for specific materials — items that are not in the material produced in discovery but which the defense is aware of but cannot obtain without assistance. Oftentimes this will be material in the possession of government agencies not involved in the case. As a result, the Government will claim the material is not in the possession of the prosecution and the defense needs to pursue other avenues to acquire that material. Sometimes the Government will agree to request that material from other agencies, and if provided it will be turned over as discovery.
The motion filed by the defense states that multiple requests for additional discovery were made in the fall of 2023 — October 9th, 19th, 31st and Nov. 1. The Smith SCO responded to each, provided some additional materials, but for the most part denied the requests for additional discovery.
In a very shrewd tactical move, the defense obtained records via Freedom of Information Act (FOIA) requests that showed communications between NARA and the White House early in the Biden Administration, communications that later included DOJ. These communications were not included in the discovery produced by the Smith SCO. With this material the defense is able to argue that it is not just asking for material that may or may not exist — an issue that often dooms defendants in discovery disputes before the Court — but it can show actual documents that the defense claims should have been turned over by Smith’s SCO but were not.
When this “cooperative” written process cannot achieve the results desired by the defense, and the Government has expressed an intention to not assist any further, the defense can then turn to the Court with a motion to compel discovery. This motion rests upon the grounds that the material sought is within the description of discovery under Rule 16, and the Government is required to produce that material to the defense in order to comply with its obligations under the rule. That is where the process stands now.Given that no former POTUS has ever been the subject of a criminal investigation and prosecution for retaining classified information after leaving office — and as is shown by some documents obtained by the defense through Freedom of Information Act requests — there were questions raised by various individuals in the government about whether what Trump was said to have done was a prosecutable crime. Those communications are potentially exculpatory. Because classified materials were involved, some of these communications may exist only on classified email systems.
The fact that this discovery dispute exists means there is ZERO chance this case goes to trial anytime in 2024. Depending on the scope of expanded discovery that might be ordered by the Judge — and the extent to which additional classified information is implicated — there may be little chance that the case gets to trial anytime during 2025.
I had limited involvement in classified documents case in my career. The time between the defendant’s arrest and his conviction was four years and ten months. An entire library of classified evidence existed for the case, and the SCIF built for the case in the U.S. Attorney’s Office was the only place prosecutors and defense attorneys could review the materials. Logistical problems slow these cases down in unimaginable ways — delivering classified information into the Court’s files is just one example. No one orders the Judge to travel to the SCIF to work on resolving motions.
SCO Smith’s ability to move this case forward will almost grind to a complete halt if the Florida judge determines that under 11th Circuit law the “prosecution team” includes his office, those at DOJ who worked on the investigation before he was appointed, the FBI Washington Field Office, FBI Headquarters, White House Counsel, National Security Council, DOD, NARA, CIA, NSA, etc., and Smith is forced to canvass all of them to find and produce discovery or exculpatory material owed to the defense.
The motion for discovery probably “gilds the lily” a bit by going overboard in making “suggestions” on what the Court should order Smith’s SCO to undertake in terms of searching out potentially discoverable and exculpatory material. The motion goes into great detail in what the defense wants the Court to order Smith’s SCO to do — not only in terms of the kinds of materials to produce, but also in listing all the federal agencies that should be canvassed for this additional material.
But, to the extent the Court orders Smith’s SCO to undertake any of the additional discovery production, this case is going no where near a courtroom for trial prior to November.
This would not be an order subject to interlocutory appeal. A failure by Smith’s SCO to comply with a discovery order could result in a contempt citation or evidentiary sanctions.
It is almost certain now that the only trial that gets finished is the New York case where Michael Cohen is the key to “victory.” More on that later.
I’m going to make this last point as a Post-Script.
I did not address in this story the suggestions have been made in Trump-sympathetic media reporting that these motions show Smith SCO and FBI to have engaged in actual misconduct involving altering and even “planting” evidence in the files of allegedly classified documents held by Trump at MAL. The SCO seems to have conceded that it did not preserve documentary evidence in a manner that allows the defense to see exactly how the documents in question were stored inside the boxes where they were allegedly found, which the defense calls “spoilation of evidence” that might deprive the defense of certain factual defenses it might have offered but can’t now because the precise manner of storage of the individual documents cannot be recreated. .
Instincts built up by me over 21 years with DOJ from 1992 to 2013 would in the past have led me to assume that if mistakes were made by the FBI and DOJ in the process of seizing the documents and accurately recording how the documents were found, that is likely the result of incompetence and/or negligence on the part of the Agents at the time they seized the records and inventoried them.
I’m no longer willing to adopt that presumption until something else is established. Because of my experiences in defending January 6 cases over the past 30 months, as well as close review (on a variety of levels, some obvious and some not) of many events involving SCO Smith and his office, my view now is that these bureaucracies have been so polluted by social justice warriors and rabid anti-Trump partisans that I no longer credit the idea of “The DOJ-FBI would never do that.” I think the current workforce of the two institutions have become so dominated by social justice warriors that an “ends justifies the means” rationale for decision-making can no longer be dismissed out-of-hand.
The personnel make-up of the FBI’s Special Agent force has been so transformed over the past 10-12 years that it does not resemble that which I left behind. I’ve now experienced a Bureau that is ends-driven to the degree that it is willing to bend the process to achieve its desired outcome. I’ve seen too much slanted presentation of evidence in order to “win” that could have been presented in a straight-forward manner and let the outcome be whatever it is. The current work force goes to purposeful lengths to make what they do impervious to serious scrutiny — almost like they have something to hide and they don’t care if you know what to be the case. So long as you can’t uncover what they are hiding in time, they win — and winning trumps fairness and justice.
The overtly progressive — and partisan — sentiments of the work force are the result of more than a decade of recruitment. THEY DON’T KNOW A DIFFERENT PARADIGM.
Was there — within the group of Agents who executed the search warrant at Mar A Lago and the DOJ/FBI staff who oversaw the processing of the evidence before it was produced in discover — an cadre of individuals willing to “handle” that task in such a way as to improve the chances of a successful prosecution of an individual who, to them, represents a singular threat to the continued existence of democracy (sounds stupid, doesn’t it)?
I’m no longer willing to assume the answer is “No” until proven otherwise.
I love your lucid ( and to this layman, simple) explanation of complex legal issues surrounding the prosecution. Bravo, keep up the good work and thanks for all you do for any held unjustly for January 6th.
SWC, the postscript: 🔥🎯
It’s so hard to accept that all of our institutions are thoroughly corrupted.
In Sundance’s (TheLastRefuge, pretty sure you know the blog) daily “resistance’ post there is a comment at the ‘top’, the twelve steps of a battered conservative (paraphrasing). The more I see the more I understand the truth of the label.
It must be especially hard for one who took the oath, dedicated your life, strived for excellence, applied a single set of values and principles, to see your life’s work undone by people who don’t know or ignore history.
In our case I see a blend of the Bolsheviks, the French revolutionaries*, Mao’s youth movement…and I guess Mussolini with an actual fascistic structure in place. None of these movements turned out the way the instigators supposedly hoped.
I assert that the striving for, the search for, Utopia is the most dangerous force on Earth.
Thank you for your efforts doing your part to preserve our Republic.
*I recently heard an apt distinction that I repeat as often as I can: the Colonies fought a war of independence, vs the French, who mounted a revolution.