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In this courtroom sketch, attorney Todd Blanche stands as he enters a plea of not guilty on behalf of former President Donald Trump, second from right, in federal court, Tuesday, June 13, 2023, in Miami. From left are: Stanley Woodward, Walt Nauta, Blanche, Trump and Chris Kise. (Elizabeth Williams via AP)
After special counsel Jack Smith accused Donald Trump‘s legal team of “smuggling” a new defense theory into his classified documents case in Florida as a delay tactic, Trump’s lawyers responded on Wednesday, saying prosecutors’ “misrepresentations” about their efforts should not be believed by presiding U.S. District Judge Aileen Cannon.
The 6-page brief from attorney Todd Blanche notes, however, that Trump still wants to hold off on a Feb. 22 deadline for motions to suppress evidence as well as motions to dismiss the indictment against him and his co-defendants Waltine Nauta and Carlos de Oliveira on grounds of “prosecutorial misconduct, other due process violations and unlawful disregard of President Trump’s attorney-client privilege (collectively, evidentiary motions).”
Blanche accused the special counsel of making “misrepresentations” to Cannon, a Trump appointee, about their side’s willingness to stick to a schedule by claiming that the special counsel’s office delayed providing unclassified as well as classified discovery materials from as far back as July 2023.
This is not a new grievance and prosecutors on Smith’s team have regularly protested this.
In their own motion last week, prosecutors noted that government attorneys have provided thousands of pages of requested classified materials to Trump’s lawyers already.
Trump attorney Christopher Kise was authorized to review 2,100 pages of classified discovery in September when it was remitted and that included, as CBS reported at the time, information from documents directly tied to Trump’s illegal retention charges.
Nevertheless, Blanche wrote:
The Court already observed that ‘one would have to review the relevant classified discovery in order to formulate a meaningful response’ to the first CIPA § 4 motion by the Special Counsel’s Office.
Similar logic supported the Court’s rejection of the [Special Counsel’s] Office’s request to require premature CIPA § 5 notice prior to resolving discovery disputes that the Court previewed in the scheduling order.
For clarity, a CIPA § 4 motion pertains to exculpatory classified materials that the prosecutors believe the defendant should have partial access to.
This might be necessary in Trump’s case since he faces illegal document retention charges, making him distinct from his co-defendants. As Lawfare noted ahead of the filing from Trump’s lawyers on Wednesday, Trump’s co-defendants Nauta and de Oliveira are not cleared to see classified materials in discovery but their lawyers were cleared several months ago.
As to a CIPA § 5 motion, it requires a defendant who intends to disclose information to provide timely notice to the court and federal prosecutors.
Cannon previously counseled the parties that disagreements over the scope of discoverable materials would “require substantial judicial intervention,” Blanche noted.
As such, for now Trump’s lawyers say they are not required to provide any notice of what they intend to disclose at the looming trial before they have a “fair opportunity” to get their own defense strategy together by reviewing “all discoverable material.”
If forced to file by Feb. 22, Trump would be doing so incompletely, necessitating another hearing anyway, Blanche argued. Instead he would like an “open-ended” deadline.
“The Office deserves no credit for its self-proclaimed conservative approach to discovery when it is simultaneously suppressing the materials that matter most to the defense and that are plainly discoverable,” the reply brief states.
Since prosecutors do not dispute that they have not provided any “ex parte” filings, or parties reviewed only by one side, related to Trump’s claims of a crime-fraud exception until late last month, Blanche says Trump will need more time to review those before filing his motion to suppress.
Notably, the defense lawyer contends Trump is not trying to waylay a trial date despite seeking a motion to dismiss the charges. It is the court’s existing scheduling orders on the docket that leads them to believe that a trial date is not “firm” anyway, the filing said.
