Biden and the Brady Bunch

It would be a mistake, in our view, to write off as typical Trumpian bluster the former president’s motion to compel a broad swath of the federal government to turn over what it knows regarding his prosecution. For the fact is that he’s seeking a basic element of due process, vouchsafed in a Supreme Court precedent known as Brady v. Maryland. It guarantees defendants the right to be presented with exculpatory evidence against them. It is American bedrock.It has begun to glint in the current case after evidence surfaced that the special prosecutor of the Georgia state prosecution, Nathan Wade, has twice met with the White House or Justice Department. Yet the federal special prosecutor, Jack Smith, maintains that the two criminal cases he has launched against Mr. Trump are being piloted by his office alone. So Mr. Trump is asserting a Brady right to know what in the devil is going on.All this is mentioned in Mr. Trump’s motion. It records that Mr. Wade’s bills indicate that he “devoted eight hours to a ‘conf. with White House Counsel.’” Another invoice relates that Mr. Wade spent a further eight hours in an interview with “DC/White House” on November 18, 2022. On that same day, Attorney General Garland appointed Mr. Smith special prosecutor — only three days after Mr. Trump declared for a second term. No wonder the 45th president sees enemies lurking across federal agencies and demands “exculpatory, discoverable evidence in the hands of the senior officials at the White House, DOJ, and FBI who provided guidance and assistance as this lawless mission proceeded.” The words “exculpatory, discoverable” are something like a Brady Bat-Signal, as prosecutors are required to turn over to the defense over any — and every — bit of potentially exculpatory evidence.Failure to do so would be serious. In 2009, prosecutors of Senator Stevens of Alaska were discovered to have withheld exculpatory evidence. Stevens’ conviction was promptly overturned by a furious court and the prosecutors themselves were lucky to have avoided jail for contempt. Fifty years ago, the Fifth Circuit Appeals Court remarked that Brady “rests upon an abhorrence of the concealment of material arguing for innocence by one arguing for guilt.”The rub, then, is not what prosecutors owe Mr. Trump, but who counts as a prosecutor. The 45th president maintains that he is being pursued by the Department of Justice commanded — ultimately — by the 46th one. Evidence (including expense receipts of the prosecutor in Georgia and President Biden’s own remarks) has surfaced showing that Mr. Biden has hardly kept away from the prosecution of his predecessor — and leading opponent. Mr. Trump’s position that such involvement by Mr. Biden is prima facie proof of corruption strikes us as wrong. The Constitution vests all of the “executive power” of the United States in the president. Devolving that power and its accompanying obligations to General Garland, who in turn handed it off to Mr. Smith, does not alter the constitutional ledger. Who else but Mr. Biden can be responsible for a federal prosecutor?Neither Mr. Biden, nor General Garland, nor Mr. Smith can play games with the court. As the Seventh Circuit once put it, the government “cannot with its right hand say it has nothing while its left hand holds what is of value.” The right thing for Judge Aileen Cannon, in whose court Mr. Trump has filed his motion, and all the other judges, is to bow to Brady — and order the production to Mr. Trump of all evidence that could even just help exonerate him.Forgive our obsessiveness on this head. Millions are preparing to go to the polls at a time when, to a shocking degree, the probity of the Justice Department is as much in doubt as the guilt of the defendant. It is hard to think of any time in our history when there was a greater hunger for honest dealing in Washington. What a catastrophe it would be were the government to win its case against Mr. Trump only for its thumb to be found on Justice’s scale.

Biden and the Brady Bunch

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