On Friday night, lawyers for Donald Trump filed a “reply brief” in support of a motion to compel discovery in the Florida documents case. To call it batshit is a massive understatement.
Trump claimed that pro-Biden campaign PACs highlighting his opponent’s legal travails was “election interference in its clearest form.”
He complained that a former staffer at the National Archives made a National Treasure joke on Facebook.
“For the millions of people who support President Trump, NARA is hardly the ‘nation’s record keeper,’” he sneered, adding that “NARA witnesses providing trial testimony regarding, for example, the 15 Boxes, will be confronted with public displays of the agency’s bias.”
And he whined about the Hur Report on Joe Biden, noting that “In light of the decision not to prosecute President Biden for his ‘willful; violation of the Espionage Act, the Special Counsel’s Office can no longer avoid discovery on a [sic] selective and vindictive prosecution theories.”
The original motion to compel, filed a month ago, was nutty enough. In it, Trump argued that more or less the entire federal government was part of the “prosecution team” and thus subject to discovery. He demanded that Judge Cannon deputize him to trawl through the records and communications of the Department of Energy, the National Security Council, and of course the National Archives for supposed Brady material. He also demanded prosecutorial deliberations which are clearly covered by deliberative process and work product privilege. But that document at least adhered to the form and process of a motion to compel.
Friday’s 37-page primal scream is something else entirely. Sure a reply brief is supposed to reply and not introduce new evidence. And, okay, if you want to get technical, there’s, like, a legal standard for selective and vindictive prosecution and you don’t just get to yaddayaddayadda over it by claiming you’ve made a “prima facie” showing and are entitled to delve into prosecutorial communications. But when you’re a billionaire comparing yourself to Yick Wo, sometimes the legal niceties like basic civil procedure fall by the wayside.
This morning, the Special Counsel filed a terse motion to file a surreply noting that THAT IS NOT HOW ANY OF THIS WORKS.
“Arguments and factual assertions not presented in an opening motion and raised for the first time in a reply brief are not properly before the Court, and the Court should not be asked decide matters that have been neither properly raised nor fully briefed,” they note, omitting to mention that Trump’s lawyers Todd Blanche and Chris Kise are perfectly well aware of this and pressing their luck with a jurist they believe to be firmly on their side (and totally inexperienced).
The government objects to the use of the motion to argue for selective prosecution “by smuggling this issue into a reply brief.” But if Judge Cannon is going to put up with these shenanigans, the prosecutors would at least like a chance to file a reply, presumably to point out that President Biden consented to a search of his home, sat for multiple interviews with the prosecution, immediately gave back the documents, never ignored a subpoena, never induced his minions to lie, and never tried to delete the evidence — so, no, these two things are not the same.
Imagine if this case had landed on the docket of literally any other judge …
US v. Trump [SDFL Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.