Donald Trump Insists He’s Too Special To Use Same Database 1,200 Other January 6 Defendants Have Used

In addition to his claim that he needs a bunch of intelligence so he can try to distinguish his influence operations from those of Russian spies, Donald Trump also submitted a filing claiming that Jack Smith has not done an expansive enough search on discovery.

To understand how frivolous this filing is, consider that it complains that Jack Smith has not included DC USAO materials on the January 6 investigation in its discovery to Trump.

Since the Order, the Special Counsel’s Office has enjoyed constructive access to USAODC documents. In an August 11, 2023 discovery letter, the Office wrote that the USAO-DC “maintains a separate database of materials comprising discovery in the criminal cases related to the breach of the United States Capitol on January 6, 2021.” Ex. G at 6. The letter stated that the “investigative team” in this case had “accessed certain materials within that database and has taken into its possession certain materials that the investigative team may rely upon or use at trial.” Id. Given these alignments, there is no question that the USAO-DC is part of the prosecution team.

Twice over the course of these discovery letters, DOJ has told Trump if he wants access to the full database provided to all the other January 6 defendants, he can get it.

As we advised you, in the course of our investigation, we accessed certain materials within that database, took into our possession certain materials that we may rely upon or use at trial, and produced them to you in discovery in our case. In our August 11 letter, we also offered to facilitate your access to the USAO database. We reiterate that offer now.

In response, Trump complained about DOJ’s unwillingness to identify everything in the database that might be helpful.

Seeking to avoid that obligation, the prosecution’s November 25 letter again directed our attention to a “a separate database of materials comprising discovery in criminal cases related to the breach of the Capitol on January 6, 2021.” Ex. F at 3; see also Ex. G at 6. Like SASC Windom’s “full access to the FBI’s trove of evidence about Oath Keeper and Proud Boy extremists involved in the riot,” Doc. 116-1 at 9, the Office’s conceded access to the USAO-DC’s database further supports President Trump’s position that the USAO-DC is part of the prosecution team.

However, it is not enough for the prosecution to offer the defense access to materials produced in those cases. “The government cannot meet its Brady obligations by providing [the defendant] with access to 600,000 documents and then claiming that [the defendant] should have been able to find the exculpatory information in the haystack.” United States v. Hsia, 24 F. Supp. 2d 14, 29-30 (D.D.C. 1998). In United States v. Saffarinia, the court relied on Hsia and agreed with the defense that “the government’s Brady obligations require it to identify any known Brady material to the extent that the government knows of any such material in its production of approximately 3.5 million pages of documents.” 424 F. Supp. 3d 46, 86 (D.D.C. 2020); see also United States v. Singhal, 876 F. Supp. 2d 82, 104 (D.D.C. 2012) (directing prosecutors to disclose the “identity (by Bates number) of the specific witness statements and documents” that are “producible as Rule 16(a)(1)(E)(i) documents material to preparing the defense, regardless of whether those documents are inculpatory or exculpatory”). The discovery in this case dwarfs that at issue in Hsia and Saffarinia, and the prosecution must identify information that is subject to Brady by doing more than pointing to another huge database.

This issue has already been litigated, repeatedly, in other January 6 cases. His demand for more is a demand to be treated better than the people at the Capitol, the people actually depicted in and/or who took the video.

The argument itself is largely an attempt to exploit the fact that the defendant was once the President and so interacted with all parts of government. As DOJ quipped in an October 24 letter:

To point out but a few of the exceedingly broad errors in your assertion, the prosecution team does not include the almost three million civilian, active duty, and reserve members of the Department of Defense; the 260,000 employees of the Department of Homeland Security (or its CISA component); or the Intelligence Community writ large. Furthermore, your attempt to serve Rule 17(c) subpoenas, ECF No. 99—definitionally reserved for non-party witnesses—on the House Select Committee’s successor entity and a member of the White House Counsel’s Office confirms your understanding that those entities are not members of the prosecution team.

It is not rooted in the actual evidence in the case or — as with virtually all the filings Trump’s teams have made — the actual charges against him.

That said, the associated filings are of some interest. It’s just that Trump’s team submitted them in the least useful way possible. I’ve put them below, in order.

Reading them together reveals that some of what Trump requested in his unclassified discovery request last night — such as the request for the classified backup to the 2016 ICA or the opportunity for foreign powers to hack the 2020 election — were already covered in DOJ’s motion to strike his CIPA 5 request.

Reading them together also shows a progression. As I’ve noted, his original request asked for:

43. Please provide all documents relating to communications or coordination by the Special Counsel’s Office and DOJ with any of the Biden Administration, the Biden Campaign, Hunter Biden, the Biden family, the Biden White House, or any person representing Joe Biden.

In the first response, DOJ addressed that question (and question 37(b) for materials on Executive Privilege) by describing five Executive Privilege waiver reviews

37b. The defendant was party to five miscellaneous matters regarding assertion of the executive privilege. Attachments to filings in those five matters included letters from the incumbent White House declining to invoke executive privilege over certain witness testimony. The defendant already has those materials.

Trump must have made a follow-up at the November 21 meet-and-confer, because DOJ addressed it again, saying that whatever he wants is not in the prosecution team’s possession and not covered by discovery obligations.

Requests 33, 40, 42, 43, and 44 seek information that exceeds the scope of our discovery obligations, is not within the possession of the prosecution team, and/or does not exist.

One interesting redaction in this most recent exchange pertains to Trump’s request for injuries of law enforcement on January 6.

2. If you intend to introduce evidence at trial of any injuries sustained to law enforcement or anyone else at the Capitol on January 6, 2021, please provide all documents regarding those injured during the protest at the Capitol, including medical records.

DOJ’s response to that is entirely redacted, suggesting that DOJ may well submit records of injuries, such as the heart attack Danny Rodriguez caused after being especially riled up at Trump’s rally.

Finally, of significant interest: Trump asks for the identities of all the people who’ve flipped.

16. Please provide all documents regarding offers of immunity, forgoing of prosecution, diversion, USSG 5K1.1 reductions, or any other consideration to persons under investigation or charged regarding activities related to January 6th.

DOJ included that request among those about which it said Trump was not entitled to discovery.

Requests 15-19, 34-36. All of these requests—regarding the pipe bomb investigation, offers of immunity to January 6 defendants, “Antifa,” sources, and various named and unnamed January 6 offenders—appear to be focused on others’ actions related to the January 6 attack on the Capitol. Many of them request information that exceeds the scope of our discovery obligations and/or is not within the possession of the prosecution team. To the extent that we possess any such materials, we have produced them to you. Relatedly, in our meet and confer, you stated that you believe that in certain other cases, the Department of Justice has taken a position inconsistent with the indictment’s allegations that the defendant is responsible for the events of January 6. We disagree. The Department’s position in other January 6 cases that the defendant’s actions did not absolve any individual rioter of responsibility for that rioter’s actions—even if the rioter took them at the defendant’s direction—is in no way inconsistent with the indictment’s allegations here.

Trump continues to argue he’s better than the members of his mob. And he’s trying to avoid being held accountable for any near murders his incitement caused.

August 11 DOJ letter accompanying first classified discovery; includes redacted reference to Secret Service at 6,

October 6 Trump letter addressing Document 1 and Document 5

October 23 Trump discovery letter with seven requests redacted (Unredacted copy)

October 24 DOJ response to classified discovery letter, describing scope of prosecution team

November 3 DOJ response to October 23 discovery letter rejecting most requests and telling Trump where to find some of it in discovery; this has a number of specific references to the requests in the October 23 letter

November 15 Trump discovery letter making broad requests for January 6 discovery

November 25 DOJ response to November 15 letter and November 21 meet-and-confer, providing additional responses to October 23 requests

Exhibit H (sealed; pertains to reason Bill Barr changed Public Integrity’s approach to voter fraud claims)

Exhibit I (sealed; follow-up to letter Molly Gaston and JP Cooney sent about PIN)

Exhibit J (sealed; involvement of National Security Division in January 6 cases)

Exhibit K (sealed; involvement from FBI WFO on January 2)

Exhibit L (sealed; involvement from FBI WFO on January 3)

Exhibit M (sealed; reference to DHS I&A as attempt to get to CISA Election Task Force; ODNI involvement)

Exhibit N (sealed; related to DHS involvement in March 2021 report on 2020 election)

Exhibit O (sealed; related to DHS involvement on January 6)

50 replies
  1. Rugger_9 says:

    Well, Defendant-1 will insist he is too special for any controls (‘It’s called Article 2 and it says I can do whatever I want’) even if it’s a dead letter as a former president. However, to shut this claim down will (potentially) force more delay for hearings, etc. including appeals. That’s why this stuff gets flung out sequentially.

    However, I will also observe that if Judge Chutkan is able to shoot this down because the defense already has these materials or that it is clearly irrelevant, ‘being special’ becomes moot. There is nothing to decide except the idea that former presidents are above the law.

    • Rugger_9 says:

      I’m wondering if Judge Chutkan can use a ‘show cause’ order to force the defense to combine their motions to dismiss into one. As it stands now, the sole purpose for doing these one at a time is to waste the administrative time for each one and the claims are becoming more ridiculous. I do understand that this is a criminal case so more leeway is in order, but I also know that SCOTUS has ruled repeatedly about timely appeals and claims and wonder if Judge Chutkan can give the defense a ‘last and final’ opportunity to raise relevant claims. The last couple of filings are increasingly desperate and ridiculous.

  2. Peterr says:

    Finally, of significant interest: Trump asks for the identities of all the people who’ve flipped.

    16. Please provide all documents regarding offers of immunity, forgoing of prosecution, diversion, USSG 5K1.1 reductions, or any other consideration to persons under investigation or charged regarding activities related to January 6th.

    Trump isn’t asking just for the identities of those who have flipped, but also the identities of everyone the DOJ *tried* to flip — as well as the offers made to each of these folks. He is asking for the roadmap of the whole investigation.

    If I didn’t know better, this would look to me as if Trump wanted to see how much he’d have to offer to outbid the DOJ.

    • earlofhuntingdon says:

      The Heritage Foundation would be happy to have access to such information, so that it can use it to revise their nomenklatura for Trump’s next administration.

    • earlofhuntingdon says:

      Trump’s lawyers are like Fox Noise: they are happy to throw around without evidence allegations of “unethical” and other unprofessional conduct. They must assume they are as untouchable by ethics panels as Trump believes he is untouchable by law enforcement.

    • scroogemcduck says:

      I read that request as “please provide me with a list of potential witnesses so that I can pressure them, intimidate them and unleash my goons on them.”

    • Buzzkill Stickinthemud says:

      Next Trump motion: Please provide us a copy of your entire investigation, and all the other investigations. We’ll wait on the roof, enjoying cognac and cigars. Once you’ve delivered, we’ll complain it’s not enough, then complain that you’re cheating and file another motion to dismiss.

      • bmaz says:

        Why exactly should a defendant not be entitled to that? Is it just because it is Trump, or do you think ALL defendants ought not know what the government has done?

    • RipNoLonger says:

      Doesn’t this request also make the prosecution able to demand that trump provide all records on who he has contacted to try and “flip” (or threaten) their testimony? Of course this is a fool’s errand for either side – which is part of his knavery.

      • stillscoff says:

        Trying to understand this as a non-lawyer.

        Does your comment have to do with the “right to know your accusers” and the defense wanting to know who the investigation had interviewed?

          • stillscoff says:

            Thanks for the swift reply. It helps me understand a little better.

            I’d want the same thing if I had been accused of a crime. And that’s what it’s really all about, isn’t it?

  3. earlofhuntingdon says:

    Trump seems to be admitting that he is too cheap and/or his lawyers are too lazy or incompetent to review the materials already provided them, unless DoJ provides them a trail of bread crumbs to find the evidence most damning to Trump’s defense.

    It’s also possible that Trump doesn’t give a shit, and he’s drowning the prosecution in offal to make it harder for them to do their work. But the idea that any filing by Trump’s lawyers might be frivolous is useful in assessing whether to sanction them or Trump.

    • scroogemcduck says:

      He’s absolutely drowning the prosecution and the Court in offal, to try to wring every last day of delay he can out of the CIPA process and pre-trial motions.

    • coalesced says:

      DoJ even points to said “bread crumbs” early on.

      “As an initial matter, to assist in your review of the discovery materials and as noted below, Discovery Production 1M is a compilation of key documents with the Bates range SCO-11572395 through SCO-11619680, is also available in load-ready format through the link below.”

    • Fraud Guy says:

      I thought HIPAA only covered unauthorized disclosure by medical providers; I believe that records can be disclosed when requested by a properly submitted subpoena, whether from law enforcement and/or as part of a private suit. Once law enforcement and/or attorneys have such documentation, it would be then covered under whatever protocols concern investigative or client privilege.

      • Peterr says:

        Yes, that’s the bulk of what HIPAA talks about, but not the whole thing. Medical records can be disclosed to law enforcement in response to a subpoena, but law enforcement cannot that that information and blithely release it to the broader public. It can only be released under certain circumstances, such as evidence at trial. Disclosing it to the judge and the defense in pretrial discovery and motions is fine, but I’m pretty sure that at this point, it still must be kept out of the public eye.

  4. David F. Snyder says:

    Ironic, given that one could say Trump “has not done an expansive enough search on discovery” on Bedminster or wherever in hell that missing top sec doc has got off to.

    [Moderator’s note: PLEASE use the same username and email address each time you comment so that community members get to know you. You have omitted the F. in your username four times since October 22 which causes me extra work to validate your identity each time. You were told on October 5 this was a problem. Eventually you will not be able to publish a comment unless you use the exact name with same email each time — figure out how to do this now before new coding boots you. /~Rayne]

    • David F. Snyder says:

      Posting on my phone has its disadvantages: autocorrect probably overrode my autofill (and I wouldn’t see that since the text box pushes the username off-screen). I always type that F. But then I should have double-checked the byline before clicking “Post Comment” (of course, life is short).

      But sometimes people have medical problems affecting memory, so telling me on October 5th doesn’t change that about me. Thanks, mom.

      “Helpful people programs are a nuisance.” DYAC!

      • Rayne says:

        Figure it out. We don’t ask for much, not real names, not real personal data like cell phones or street addresses, not even valid email accounts. Just a unique username of at least 8 letters and the same email address (real or not) every time. Imagine if we asked for any of that or even a password — the administrative load here on this side of the site would skyrocket.

    • David F. Snyder says:

      “I showed you on October 5th” he said to the blind man. We can only do what we are capable of.

  5. Susan D. Einbinder says:

    The consensus suggests that, in part, these requests are attempts to slow down/screw up the progress of the case. Is there some point that Trump’s lawyers will be told that they cannot file any more irrelevant requests? Is there a reprimand process or equivalent? Without that, what’s to stop them from submission after submission after submission? Doesn’t the state Bar Association have anything to say? Living in California, I’m aware of CA’s Bar Association’s ‘limitations’, but still … My apologies if this is something that all lawyers know…

    • SonofaWW2Marine says:

      Judge Chutkan’s scheduling order[s?] have deadlines past which Trump & the gov’t aren’t supposed to file more motions on various topics. But even if you’re trying to follow the rules in good faith, if something comes up you can file a motion for permission to file that new item. Those are usually called motions to seek leave to do [X]. Typically, you would file your new motion as an exhibit to your motion seeking leave, so the judge & the other side can see what you want to do. It’s also a way to clutter up the record and try to slow things down, if you’re acting in bad faith.

      The trial judge also has the inherent power to supervise what’s going on in her cases. So if Judge Chutkan gets fed up, she could issue an order telling Trump’s lawyers to stop filing motions about X, Y, or Z, and sanction them in some way if they do it anyway. Even then, depending on how much nerve they have, they could petition the Court of Appeals for the DC Circuit to order Judge Chutkan to let them file X, Y, or Z. Those petitions, known as writs of mandamus, are not granted very often — but everything in this case has the potential to go sideways.

      You’re right about the bar authorities. They could yank a lawyer’s license, but they’re usually very reluctant to act in the middle of a case. The California bar (John Eastman) and DC and New York bars (Rudy Giuliani) acted sooner than I’d ordinarily have expected, though, so once again, this mess is an outlier. But it would still be extremely surprising if any bar authority did anything about Trump’s outside lawyers while they’re still representing him in an active case. They typically wait until a case is over.

      • earlofhuntingdon says:

        Except that California’s bar regulators could start their sanctions process now, but it would be far from over by the time any of Trump’s cases conclude.

    • earlofhuntingdon says:

      Yep, more trash from team Trump. Barbara Jones, as the monitor for Trump’s NY companies, is an arm of the court, so her testimony as a Trump witness would pose a direct conflict of interest.

      Engoron has already said, no. Pretty sure Trump never wanted any other answer: he would not have welcomed her answers to questions on direct or under cross-examination.

      • Konny_2022 says:

        From The Daily Beast this afternoon under the heading “Trump Caught Moving Money Around to Pay Massive Tax Bill” (by Jose Pagliery):

        That meant the Trumps had to notify [Barbara] Jones anytime they moved more than $5 million out of the billionaire’s massive trust. Except they didn’t.
        Jones said she and her team recently spotted unusual activity when reviewing 10 months of bank statements from 12 separate accounts belonging to the Donald J. Trump Revocable Trust. They found that Trump had pulled out $40 million in “three cash transfers” without ever notifying her.
        She asked about it and got answers.
        “These transactions included a cash transfer of $29 million to Donald J. Trump, which I have confirmed was used for tax payments,” she wrote.

        That should confirm that Trump(‘s team) did not really want to put Jones on the witness stand.

        • earlofhuntingdon says:

          The article said about $5.5 million of that $40 million went to pay E. Jean Carroll. I’m sure that Barbara Jones’s team is assessing the tax impacts, if any, of those withdrawals and payments made on behalf of Donald J. Trump. Also pretty sure that a $29 million tax bill is much bigger than His Majesty is used to or likes to pay.

          But, yes, the Trumps are obligated to give advance notice of such things to the monitor, who works for the court, and chose not to comply. Given his trial before Judge Engoron, every time Trump does this, he puts a nail in the coffin of his own wealth and businesses. Reminds me of Roy Cohn, who made sure, like a character from Ocean’s Eleven, that the last checks he wrote (and a lot more) bounced.

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