Jack Smith smacks down Trump's demand for DOJ documents he says will prove biashttps://t.co/ZmZaJKp05E
— Raw Story (@RawStory) February 26, 2024
When I was a legal assistant, one of the cases I remember was a lawsuit against the engineers of the Performing Arts Center on UT-Austin campus (now an "old" building, it was brand new then. I think I actually went into one of its spaces to hear a "tracker organ" play a soundtrack to a silent film version of "Phantom of the Opera." I think I did. I'm old, I forget things. Screw you, punks!) I only remember now it involved UT as a plaintiff, and the architects and the engineers we represented (the engineers, not the architects. Sorry.), as defendants. Anyway, we asked for a document production.
Now, civil discovery is broader than criminal discovery, but it isn't limitless. You can't ask for "everything related to the claims, plus anything else you might have hanging around, that will exonerate our client." I used to write those things up, long ago: requests for document production. It ran to several sentence paragraphs, each carefully tailored to be as general as possible, but also specific enough not to be too general. Think of a trolling fish net fine enough to catch small fish, but big enough to catch as many fish as possible. Of course, then you have to sort through each individual fish.
Usually this results in some limitations on what is produced, and you have to ferret out more based on what you find. Civil discovery can be the reason civil cases take so long to get to trial. But UT being UT knew it had done nothing wrong: the blame fell on the architects or the engineers or the contractors (the building had flooded during a heavy spring rain, just as it was finished. Not a good look for the drainage engineering our client did. The linch pin was whether we were asked to design for a 25 year flood (cheaper, and what we insisted the architect instructed), or for a 100 year flood (I think the flood that did it counted as a 50 year event. Bigger than 25, anyway.). Anyway, UT had nothing to hide, so on the day appointed I was ushered into a large room in downtown Austin and told: "You have 8 hours. Mark what you want, and we'll copy it and deliver it to you. Have fun." I'm pretty sure the guy smirked when he said that.
This was in the days before computer files for almost any purpose. Everything was paper: memos, letters, notes, building plans, construction plans, etc. I plowed through it gamely, looking for whatever documented what happened and why.
And here I could go off into my greatest minor triumph as a legal assistant (my careers have been a series of minor triumphs, most of them notable only to me. So I won't bore you.). But my point (and I do have one), is that this was extremely rare. Most document productions returned a tiny box, maybe an envelope, of documents, and much squabble over what else they had, which was usually discovered in depositions of witnesses and party representatives (where companies were concerned, especially). Even then, you had to show some connection to the issues of the case. It was by no means a "give me all the documents you have in the world, and let me find something I can try to build a conspiracy theory on."
Which is what Trump is asking for in Florida:
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.
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.
Civil discovery isn't as narrow as criminal, but that's partly because criminal practice involves a government on one side, and you can't demand the entire government turn over every document it has so you can find something, anything, you can build a defense on; if you're lucky. When you read about cases where a memo was found in corporate archives that cinched the case for the plaintiff, a) that mostly happens on TeeVee, not in real life. B) it came out because someone asked for the right documents in the right way, and the corporation couldn't dodge revealing the paperwork, try as they might have.
Trump is on a fishing expedition (remember my net metaphor? I knew we'd get here.). You have to be more specific than "give me all the documents the government has until I prove my crazy theory that I can only allege right now, but I know it's true and failure to deliver the documents will PROVE a COVER UP! WATERGATE WATERGATE WATERGATE!!!!BENGHAZI!!!!!!!!!!!!"
There are other problems with the request, but this one underlines the fact Trump is acting as his own lawyer, and using licensed lawyers in court to do it (at the peril of their ability to practice in federal court, or in some cases, to practice law again at all. Any lawyer who's this much of a stooge is going to be advertising on match book covers afterwards. And yes, I know, nobody uses matchbooks anymore. Kinda my point.). This is not only a waste of time, it's a waste of money; but Trump's still acting like he has the money to waste.
That's gonna be a real hard habit to break, especially since the "She doesn't need the money, I don't have to guarantee any payment while I appeal" defense is really not going to work.
Oh, by the way, Smith filed a new response to Trump's motion to dismiss for selective prosecution:
In a new filing, Smith responds to moves by Trump and his co-defendants to collect evidence they believe will prove they've been the victims of a "selective prosecution."
Smith uses the Hur Report to counter their demands.
"The defendants have not identified anyone who has engaged in a remotely similar suite of willful and deceitful criminal conduct and not been prosecuted," wrote Smith in his new filing. "For example, their primary competitor is Joseph R. Biden ... But as the Hur Report itself recognizes, 'several material distinctions between Mr. Trump's case and Mr. Biden's are clear.'"
Smith argues that while the Hur Report notes there was no clear evidence that Biden were highly classified, Trump "engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings."
Ultimately, said Smith, "the defendants' request for discovery on a selective prosecution theory can be denied on this basis alone."
Yeah; Trump should have read past the first page.
"MA!!!! MAKE GRANDPA STOP!!!!!!"
Okay, I'm through. Punk kids!
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