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Left: Former President Donald Trump, center, sits at the defense table at New York Supreme Court, Dec. 7, 2023, in New York City. (AP Photo/Eduardo Munoz Alvarez, Pool, File)./Right: Special counsel Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023. (AP Photo/Jacquelyn Martin, File).
One day after Jack Smith ripped them for insisting on “naming all witnesses” in the government’s Mar-a-Lago case regardless of potential safety consequences, defense lawyers for former President Donald Trump called it “absurd” and “baseless” to say that they don’t care.
Attorneys Todd Blanche and Christopher Kise on Thursday filed a two-page reply that said they are simply “following the law,” unlike the Special Counsel’s Office — and, if anything, Jack Smith’s “generalized,” “cursory,” non-compelling arguments in favor of redacting or sealing names in defense pretrial motions and exhibits are to blame for the standoff on the issue.
“The Defendants take no position on any particular request for redaction of certain information. However, similar to earlier failed attempts by the Special Counsel’s Office to redact or seal public materials in this case […] the Office offers only sparse information and generalized arguments in support of the most recent sealing motion,” the lawyers told U.S. District Judge Aileen Cannon. “These cursory references to broad classes of information that the Office claims raise hypothetical concerns do not ‘set forth ‘the factual and legal basis for departing from’ the court’s open-access policy.””
It was inappropriate for the special counsel to claim that his own failures to persuade meant that the Trump team doesn’t care about witness safety, the lawyers continued.
“The Special Counsel’s Office has added the baseless assertion that ‘the defendants take no responsibility for the safety and security of witnesses.’ This is not so,” the reply said. “The Defendants are following the law, something the Special Counsel’s Office has routinely failed to do as it relates to their obligations to allow for public access to criminal proceedings. It is absurd for the Office to suggest that because the Defendants can point to no compelling reason to redact information in our filings we therefore do not care about the safety and security of witnesses.”
The defense reiterated its stance that Judge Cannon should redact or seal portions of their pretrial motions “only if the Special Counsel’s Office carries its ‘heavy burden’ to justify sealing under First Amendment principles.”
On Wednesday, the special counsel submitted a filing that said Cannon made a “clear error” and opened the door to “a manifest injustice” when she ruled in early February that Smith had not “set forth a sufficient factual or legal basis warranting deviation from the strong presumption in favor of public access to the records at issue.”
Urging Cannon to correct the “error” or else there may be an appeal, the special counsel said that the “good cause” standard is the key, not the “procedurally and substantively” wrong “heightened First Amendment standard” championed by the defense and applied by the judge.
“Those procedural and substantive missteps contributed to the Court’s conclusion that the Government was required, but failed, to satisfy a heightened First Amendment standard to safeguard from public disclosure materials under a protective order,” Smith wrote. “Regardless of how the Court arrived here, that conclusion was clear error, and nothing in the defendants’ response demonstrates otherwise.”
The most severe criticisms of Trump attorneys were made in a distinct but related filing, where Smith said the defense was “unable to show concern or sympathy for someone who truly is a mere bystander.”
The “most egregious instance of exposing witnesses to potential harm,” Smith said, was contained in Trump’s motion to dismiss the case on grounds of prosecutorial misconduct.
“There, Trump makes the totally unfounded and false claim that, beginning on President Biden’s inauguration day, the former Archivist and a longtime career civil servant (and potential Government witness) began ‘to conspire’ to ensure a criminal investigation into Trump’s missing records ensued,” the filing said. “Naming this witness on the public docket in connection with Trump’s baseless allegations would recklessly expose the witness to harm, and for no reason.”
Also on Thursday, the parties submitted their latest trial date proposals, with Jack Smith pushing for July 8 and Trump lawyers looking to delay until after the 2024 election.
“As the leading candidate in the 2024 election, President Trump strongly asserts that a fair trial cannot be conducted this year in a manner consistent with the Constitution, which affords President Trump a Sixth Amendment right to be present and to participate in these proceedings as well as, inter alia, a First Amendment right that he shares with the American people to engage in campaign speech,” the defense said.
Read the Trump reply to Smith here.
