Thread by @realjusthuman

United States v. Trump
(DC Election Interference Case)

Last night, Trump's counsel filed an Omnibus Reply in support of discovery motions.

storage.courtlistener.com/recap/gov.usco…

This filing concerns and adds support to Trump's still pending motions regarding:

the scope of the prosecution team,




his motion to compel discovery,


and replies to Smith's opposition to the discovery motion.
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Introduction: Dismiss this now.

"The Special Counsel’s Office conducted its initial, disputed discovery review in this case at a time when the Office wholly denied the existence of Presidential immunity. The Supreme Court’s recent decision established important parameters for the procedural and substantive consideration of this defense that the Office could not possibly have accounted for when the bulk of discovery was collected and produced. The Office cannot meet their obligations...

In the absence of a new case-file review based on a lawfully defined prosecution team and consistent with the Office’s affirmative search obligations, the prosecutors are in no position to make valid public claims defending the Superseding Indictment..."

What Trump's counsel is asking for here:

(1) Order Smith "to perform the searches and disclosures demanded in President Trump’s discovery motions"

(2) Reject Smith's request to file a brief defending the superseding indictment "before they are in compliance with their discovery obligations."

"One such question is whether Presidential immunity “must be absolute.” ...

While the Supreme Court concluded that President Trump is “entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts,”...

President Trump will establish as a matter of law that Presidential Immunity for official acts must be absolute and that presumptive immunity is not “sufficient” to achieve the underlying purposes of the doctrine..."

When Smith re-indicted Trump, he removed some language referencing official acts but kept the interactions between Trump and Pence in, even though SCOTUS had already said those interactions “[involved] official conduct” and that Trump was "at least presumptively immune from prosecution for such conduct.”

"The Office cannot meet its burden of rebutting the presumption because the use of this evidence in a criminal prosecution will “pose dangers of intrusion on the authority and functions of the Executive Branch.

President Trump is entitled to an opportunity to prevail on this issue as a matter of law...”

'Presidents “cannot be indicted based on conduct for which they are immune from prosecution.”'

Gotta step away for a bit; will be back to finish the thread later.

"... Because the Special Counsel’s Office did just that by relying on false and exaggerated allegations relating to Vice President Pence, the Superseding Indictment was void ab initio."

"prolonging proceedings in this case without addressing these dispositive threshold issues— especially through invasive factual probes of President Trump’s official acts—is itself a violation of the Presidential immunity doctrine."

"All documents supporting President Trump’s Presidential immunity defense are discoverable under Brady, Rule 16...

Because the scope of the prosecution team is disputed, and because the Special Counsel’s Office has independent affirmative obligations to search for such evidence, it cannot be true that prior discovery efforts by the Office are adequate to account for the features of this defense recently identified by the Supreme Court."

"For example, among other requirements, the Presidential immunity defense necessitates discovery regarding the government’s prior positions on the scope of “core” and “outer perimeter” Executive authority and information relating to actual or threatened “dangers of intrusion on the authority and functions of the Executive Branch,”"

"Privileges the government may hold over this information are qualified, they cannot be invoked in a blanket fashion, and they must give way to the important countervailing interests identified by the Supreme Court in Trump."

"...President Trump will transmit specific immunity-related discovery requests to the Special Counsel’s Office. President Trump reserves the right to seek further relief regarding such requests as appropriate."

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

"The Presidential immunity defense also requires further discovery regarding the “context” in which the alleged conduct took place. Trump, 144 S. Ct. at 2340.

For example, President Trump’s “core” authority included “important foreign relations responsibilities” vital to his role as Commander in Chief, such as “overseeing . . . intelligence gathering.”

Evidence relating to the exercise of this authority by President Trump and Executive Branch subordinates he supervised in connection with efforts to protect the integrity of the 2020 election from foreign adversaries, and to assess the impact on the election by those adversaries, provide context for all his election-related actions, and is therefore relevant to the issue of whether President Trump’s alleged actions involved official acts and are subject to immunity.

Thus, the Presidential immunity defense supports pending discovery requests relating to the 2016 Election ICA, the 2020 Election ICA, and related source materials, which are further discussed in the Classified Supplement."

"...it is hard to believe that the Special Counsel’s Office completed the necessary review in the time since Trump was decided on July 1, 2024, and that doubt is supported by the fact that the Office has not produced additional discovery beyond grand jury material relating to the Superseding Indictment."

"...the Special Counsel’s Office cannot defeat discoverability under Local Criminal Rule 5.1 and other authorities by crediting their false theory that President Trump engaged in “deliberate actions that caused the attack,” mischaracterizing contrary information as “rumors,” and foisting a pretrial burden on President Trump to establish that he “earnestly” credited any of the myriad exculpatory classified details that the Office is improperly seeking to keep from the defense and the public."

“We do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith.”

"...President Trump is entitled to documents and information demonstrating... that he had “no such motive because he reasonably believed” that fraud had been perpetrated."

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

"Whether or not the prosecutors regard evidence as “outcome-determinative,” information relating to election fraud is discoverable in this case. That proposition holds even if the prosecutors personally believe, albeit incorrectly, that the information was limited to “rumors.”"

In Poindexter,

"The court reasoned that, irrespective of the defendant’s knowledge of those documents or their contents, the items “may be material to a defense of lack of specific intent for several reasons.”

These rulings apply here, where the Special Counsel’s Office readily concedes, for example, that President Trump acted with “the full intelligence community apparatus at his disposal” during the relevant time period. While President Trump’s knowledge of certain facts may be pertinent to future admissibility determinations, it is improper to saddle the defense with an evidentiary burden at this phase of the case...

The defense is entitled to information that “will play an important role in uncovering admissible evidence.”"

"For the reasons stated in the Classified Supplement, it is neither “speculative” nor “far fetched” for President Trump to demand specific, existing evidence that refutes the Office’s false allegation that President Trump, alone, “create[d] an intense national atmosphere of mistrust and anger, and erod[ed] public faith in the administration of the election.”

By claiming that President Trump’s defense to these allegations is “at best, a counterfactual guess,” the Office adopts a position in a public filing that they cannot sustain in the SCIF—as they are well aware in connection with their desperate and meritless efforts to avoid relevant Intelligence Community holdings relating to third-party mitigation evidence."

'Defining the prosecution team is, literally, “Step 1” for “Gathering and Reviewing Discoverable Information.” Justice Manual § 9-5.002.'

"To date, the Office has used an unlawfully narrow definition of the prosecution team to try to justify declining to produce discoverable documents and information that is plainly accessible to them and, in several instances, refusing to even look for those materials...

...they have not looked for discoverable information in places that are obviously significant—such as at DOJ, ODNI, CIA, and DOD."

LOL!

"The Office credits President Trump with “creating” this “new test.” Opp’n at 4. But defense counsel cannot take all the credit for the groundbreaking decision to quote from this District’s caselaw."

“Where to look: The Prosecution Team”

"In United States v. Brooks, the D.C. Circuit surveyed caselaw and concluded that prosecutors have a “duty to search” for discoverable materials at agencies that are “closely aligned with the prosecution.”"

"In Libby, the court concluded that the CIA and the Office of the Vice President (“OVP”) were part of the prosecution team."

"The Special Counsel’s Office ignores the reasoning in these opinions and urges the Court to conclude that the prosecutors responsible for this case have no discovery obligations with respect to files at the D.C. U.S. Attorney’s Office—where some of the very same prosecutors worked on the investigation that led to this case."

🔥🔥🔥"The Office should not be permitted to invoke bureaucratic boundaries and pretend that these relationships do not exist now that it is time to comply with President Trump’s Constitutional rights." 🔥🔥🔥

"...the Special Counsel’s Office should be required to review relevant case files at offices where the very same prosecutors worked on the same investigation."

"the Special Counsel’s Office draws a false distinction based on an illusory bureaucratic boundary between “prosecution team members who are part of the FBI’s Washington Field Office” and “other individual agents in that office [who] may have worked on charged Capitol breach cases.”

"The Office cannot discharge their discovery obligations to President Trump by relying on decisions made years ago by prosecutors and “other individual agents” who were not focused on the allegations and charges against President Trump, his defenses, or the Supreme Court’s recent ruling."

"The Special Counsel’s Office also invokes the concept of “easy access,” but that does not help them because they have had such access to relevant materials..."

"The Special Counsel’s Office has “sought and received a variety of documents” from the J6 Committee and, as discussed in the Classified Supplement, ODNI, CIA, and DOD."

"The volume of documents obtained by the Special Counsel’s Office from ODNI and the CIA is smaller. As discussed in the Classified Supplement, however, the materials and the timing of their production are significant."

"In addition to the direct contributions to this case by ODNI and CIA, parts of the Intelligence Community have supported lawfare against President Trump in a manner that is relevant to the scope of the prosecution team."

"The coordination between the prosecution team and the Intelligence Community relating to these events is not “implied.”"

"...if “precise delineation of the investigative teams within the Office is immaterial,” that is only because it is clear that these prosecutors worked closely with the Intelligence Community in a manner that now requires the Office to review holdings at ODNI and the CIA for discoverable material."

(Sorry I am slow with the threading today, doing it in between other responsibilities and tasks I have going right now).

Smith's Office has an affirmative search obligation.

"See Justice Manual § 9-90.210(B)."

"Reasonable prosecutors often undertake these searches on their own as a result of their obligation to seek truth...

Even the Special Counsel’s Office, in the Florida case, publicly acknowledged conducting Prudential Search Requests to satisfy their discovery obligations. There is no valid basis for failing to do so here."

In addition to the discovery material discussed above, "President Trump has made specific demands in the Compel Motion and the Classified Supplement."

Which the Smith's Office has "ignored", "deflected", and "refused" to "[turn] over any of the materials at issue."

"Binding precedent establishing President Trump’s right to information that will assist in “uncovering admissible evidence” is another reason to ignore the affinity of the Special Counsel’s Office for pretrial Rule 403 analysis as a mechanism for suppressing discoverable materials."

What sort of materials are Trump and team trying to uncover and admit?

"Vice President Pence’s significance to the Presidential immunity defense."

"Elsewhere in the Opposition, the Office seeks a pat on the back for having complied with their legal obligation to collect and disclose electronic communications involving “senior Department of Justice leadership during the defendant’s administration...

As to materials at DOJ relating to Vice President Pence, however, the Office claims to lack access...

the Office represents to the Court that President Trump “has the same public information about the matter [relating to Vice President Pence] as does the Special Counsel’s Office.”" 👀

I believe the NSD supervisor they are talking about is Bratt.

Love this.

"The Special Counsel’s Office then suggests that the public reports relating to Vice President Pence are “mere accusations” that “cannot” be used for impeachment.

In this regard, prosecutors who are ethically required to do justice would have the Court believe that these so-called “accusations” in the media are just that—unproven allegations with no basis in fact. The Court should test that representation. Because if the media “accusations” do have a basis in fact, the facts are subject to Giglio."

"If Vice President Pence committed crimes that DOJ elected not to prosecute for discretionary reasons, that benefit must be disclosed."

"The proper course is to disclose the impeachment material and then file a motion to preclude..."

"With respect to members of the prosecution team at the D.C. U.S. Attorney’s Office and relevant components of DOJ and the FBI, the search obligation also requires a review of private “substantive case-related communications."

Where such communications involve statements that are inconsistent with the Office’s theory of the case, they could potentially be admissible at a trial or a hearing as party admissions or on estoppel theories."

"As explained in the Classified Supplement, a witness who is eminently qualified to speak on the subject was not as sanguine as the Special Counsel’s Office about the influence/interference line-drawing exercise." 👀

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

"It is demonstrably false, as is clear from the Classified Supplement, that the SolarWinds hack is “completely unrelated” to the evidence."

"The uncertainty about the impact of the hack during the relevant period served as a reasonable basis for good-faith doubts by President Trump and others about the accuracy of the “judgments” in the 2020 Election ICA and related reporting, and evidence regarding the hack is also discoverable"

"Security-related disclosures are discoverable irrespective of President Trump’s knowledge because these materials provide relevant context for determining the scope of official acts and dangers of intrusion on the Executive Branch for purposes of Presidential immunity.

The responsive evidence also mitigates the Office’s made-up theory of culpability by demonstrating, for example, that President Trump’s federal subordinates exercised delegated Executive power in a way that refutes the Office’s crusade to blame President Trump for these events."

🔥🔥🔥"The Intelligence Community commonly relies on FISAderived information to make assessments such as those in the 2016 and 2020 Election ICAs. To the extent government officials have abused the FISA process to collect that information, those misdeeds are discoverable to facilitate defense efforts to challenge the reliability of the ICAs."🔥🔥🔥

"Criminal defendants face severe information deficits in connection with discovery litigation, and that challenge is even more pronounced in cases such as this one involving classified information."

"A more recent report by DOJ’s Office of the Inspector General, which is a conceded part of the prosecution team here, provides further cause for concern about prosecutors’ improper bias and hostility toward President Trump—including from an attorney who was a supervisor at the D.C. U.S. Attorney’s Office at the relevant time, and now works at the Special Counsel’s Office."

oig.justice.gov/sites/default/…

"👀... information relating to undercover activities is “inconsistent” with the Office’s efforts to lay exclusive blame on President Trump, the activities of those operatives would “mitigate the charged offense(s),” and these materials would “cast doubt on the credibility [and] accuracy” of the evidence the Office is relying upon to promote its preferred narrative."

"Critically, the Office has not indicated that they reviewed any of the materials at issue.

Their failure to do so leaves them without a factual basis to affirmatively argue cumulativeness.

That is likely why they instead repeatedly make passive, incorrect arguments suggesting that the defense must make this showing with respect to materials we do not have. The Court should reject this ploy."

Haha!

"...well-sourced media coverage relating to the Office’s targeting of President Trump has disclosed numerous details regarding improper tactics and coordination that typically are not disclosed to a defendant. If pertinent portions of the reporting are inaccurate, they should say so. But they cannot undermine President Trump’s position by casting aspersions at news reports they created through their own leaks."

Outstanding filing by Bove, Blanche, Lauro, and Singer. Several things to unpack from it and some entertainment, too. Some foreshadowing, too.

I'll have more to say about all of this, and a few other topics, on the next episode of my podcast.