Doth Jack Smith Protest Too Much?

Doth Special Counsel Jack Smith protest too much? That is the question after reading the prosecutor’s latest filing, which thrums with indignation at President Trump’s request for a Mar-a-Lago trial date after the 2024 election. The prosecutor complains to Judge Cannon that Mr. Trump has “ridiculed the government” despite the “thorough and organized nature” of his staff’s work. Evidently, though, not every “T” was crossed. That is by Mr. Smith’s own admission, and we wonder if it could be an error large enough to warrant not just delay, but dismissal. As our A.R. Hoffman reports, the special counsel buries in his brief the disclosure that there have been “unforeseen complications regarding the defense’s access to some of the classified material.” Those errors, while “resolved,” were significant enough that the special counsel, usually a stickler for punctuality, allows for delay. While Mr. Smith renders the situation as something akin to a forgotten password, a plain English translation appears to be that Mr. Trump did not have access to some of the most important evidence against him. This is especially concerning given that what the special counsel calls “access issues” affected classified documents, the very material that Mr. Trump faces years in prison for retaining. Other than that, how was the play, Mrs. Lincoln?As Mr. Smith knows well, the obligation of prosecutors to turn material that could be exculpatory to a defendant is ironclad. Called the “Brady Requirement,” after a 1963 Supreme Court case, this duty was articulated three years before Miranda v. Arizona told criminal suspects that they had a right to remain silent. In Brady, the justices held that 14th Amendment Due Process requires the sharing of evidence, a burden born by the prosecution. The Department of Justice, which employs Mr. Smith, notes in a memorandum that the “law requires the disclosure” of exculpatory evidence “as part of the constitutional guarantee to a fair trial.” Brady evidence “must be disclosed regardless of whether the defendant makes a request,” meaning that the burden is on the government, which much provide such evidence even if the defendant does not ask. A Brady default draw a vacated conviction.Judge Cannon could agree with Mr. Smith that the hitch in Mr. Trump’s access to evidence is best remedied by the tonic of time, rather than more drastic measures. Thus far, though, she has been a jurist most prepared to ask tough questions of those prosecuting the 45th president. Last week, she accused Mr. Smith of “wasting the court’s time” for attempting to steal a match on Mr. Trump by ambushing him with unbriefed arguments.That Mr. Smith raised this snafu in court suggests a threshold of seriousness. It is a reminder of the power of prosecutors, especially in a case where secrets are involved. To our mind, some sunlight would be helpful here. What exactly was Mr. Trump denied, why and for how long? Judge Cannon could well determine that the the best way to answer these questions is to accede to Mr. Trump’s request to let the voters decide before the trial.

Doth Jack Smith Protest Too Much?

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