Prosecuting Donald Trump has often been compared to a game of whack-a-mole; a relentless contest of justifications, objections, and deflections. In an environment far from ideal, the Special Counsel found himself defending President Biden’s decision to immediately hand over discovered classified documents to the FBI, in stark contrast to Trump’s refusal to return classified documents, defiance of a subpoena, and allegations of data tampering.
In January, Trump’s lawyers filed a particularly audacious motion to compel alleging prosecutorial bias and the overreach of the entire executive branch, claiming to be subject to discovery obligations under Brady. Trump demanded swathes of information from multiple governmental bodies, including the National Archives, the National Security Council, the White House Counsel’s Office, and the Department of Energy.
In a swift response, the government suggested Trump’s attorneys were misguided in their understanding of what constitutes a ‘prosecution team’, as well as their interpretation of the legal requirements under Brady.
Trump’s lawyers fired back with a reply brief alleging prosecutorial bias and selective prosecution. They pointed to President Biden’s retention of classified documents, along with previous failures to prosecute public figures, as evidence of selective treatment.
However, as discussed at the time, a mere claim of stated facts and a comparator doesn’t make a sufficient case for selective and vindictive prosecution. Government lawyers requested the court’s permission to file a surreply since Trump’s response exhibited a range of new legal theories. The prosecutors note that the threshold for discovery under a selective prosecution claim, as set by the Supreme Court in 1996, has largely been unmet in the 11th Circuit since its inception.
All this takes place under the careful watch of Judge Aileen Cannon, where Trump’s unconventional arguments may continue to create waves. The learning from these chain of events reinforces that legal battles are not solely won on the efficacy of one’s arguments, but also the aptness of comparisons drawn and the understanding of legal standards.
For further reading, the full analysis by Liz Dye can be found on Above the Law.