Donald Trump is claiming prosecutorial misconduct and selected prosecution in his federal cases — and his lawyers are using it as a tactic.
Trump's legal team filed claims of political bias, then said that to prove it they need access to all documents from the Justice Department about the case.
Responding to it in court on Monday, special counsel Jack Smith balked at the move, saying Trump is "seeking an array of materials that, they speculated, could help substantiate their baseless theories of political animus and bias."
In the 12-page filing, Smith explains that asking for something doesn't mean it should be delivered — particularly if the base of the request is a conspiracy theory with no evidence supporting it.
"For example, in [Washington,] D.C. and Fulton County, Trump asked for all the 'deleted' 1/6 committee materials. Judge McAfee denied that, saying 'they don't exist,'" explained legal analyst Allison Gill, who hosts "The Daily Beans" and co-hosts the "Jack" podcast.
"Trump also asked in both jurisdictions for all material and communication from any agency in government that exonerates him. Trouble is, to compel discovery, you have to be specific about a document or documents you know the government is keeping from you," Gill wrote.
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She explained that Trump can't make vague requests to see emails and documents — he has to identify them specifically.
"You have to say, 'I have developed evidence (and here it is) that the DNI sent an email to the [Department of Justice] with evidence of voter fraud, and I need that for my defense,'" Gill said.
Trump is asking for any documents that prove vindictive or selective prosecution. First, Smith said that Trump shouldn't have access because he's never brought it up in the case as a defense until now.
"And because he can properly ask for it in a motion to dismiss for vindictive and selective prosecution," Gill said. She paraphrased Smith's filing, explaining that Smith is saying, "Now that he's filed that pile of garbage, I'll respond to THAT about how he's wrong, but he can't ask for it here."
She pointed out her favorite piece of the filing, in which Smith says, "Even if he could get what he's asking for in this motion, he fails the first step — which requires Trump to show someone else that is 'similarly situated' with the defendant.
"Trouble is, THERE IS NO ONE ON EARTH THAT HAS DONE THE CRAZY S--T TRUMP HAS. 'There have been many government officials who have possessed classified documents after the ends of their terms in office; often inadvertently, sometimes negligently, & very occasionally willfully.'
"'But there has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s... The defendants’ requests for discovery on this topic should be denied.' lol well played, Jack Smith."
