Jack Smith Demands That Evidence Remain Secret in Trump Case

(Left) Special counsel Jack Smith delivers remarks in Washington, on Aug. 1, 2023. (Right) Former President Donald Trump attends his trial in New York State Supreme Court in New York City, on Dec. 7, 2023. Drew Angerer, David Dee Delgado/Getty Images

Special counsel Jack Smith said in a new court filing that he is strongly opposed to the Trump camp’s latest request to disclose evidence in the former president’s classified documents case, because disclosure would expose potential witnesses to danger.

“The defendants’ Motion is inconsistent with the process they proposed (and that the Court approved) for their supplemental reply brief,” Mr. Smith wrote in the Feb. 16 filing.

“And their request to disclose discovery materials should be denied for the same reasons the Government has explained elsewhere: doing so would unnecessarily expose potential witnesses to very real dangers of harassment, intimidation, and reprisal.”

Mr. Smith’s latest filing stems from a Feb. 15 request by President Donald Trump’s legal team asking Judge Aileen Cannon to enter an order permitting the disclosure of the discovery materials, arguing there’s a “strong presumption of public access in criminal proceedings” that they believe outweighs Mr. Smith’s request to keep the evidence secret.

President Trump’s former longtime aide Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira have been named as co-defendants in the case, which alleges mishandling of sensitive government documents. All three have pleaded not guilty.

President Trump’s team wants to reference and quote from an affidavit in support of a search warrant for Mr. De Oliveira’s email account, most of which Mr. Smith wants to keep hidden.

The Trump team also wants to reference and quote from the grand jury testimony of an FBI special agent and a Secret Service agent concerning the thoroughness of the search on Aug. 8, 2022, when the former president’s Mar-a-Lago property was raided by federal agents.

Mr. Smith wants the grand jury transcripts to be filed under seal and any reference to their substance to be redacted from public filings.

President Trump’s attorneys also want to reference other records produced by the Secret Service regarding the Mar-a-Lago search and an email exhibit shown to the agent that includes a floor plan of the Mar-a-Lago estate, which Mr. Smith’s team also opposes.

Mr. Smith said in his Feb. 16 filing that the Trump camp’s various requests for permission to publicly disclose the materials should be denied.

“There is no reason to permit them to do so and thereby jeopardize the safety of potential Government witnesses,” Mr. Smith wrote, adding later in the filing that the materials “should be kept from public view not only to protect those witnesses from harassment and intimidation, but also to prevent exposing other potential witnesses to the information.”

Regarding the Trump team’s request to disclose the record that includes a Mar-a-Lago floorplan, Mr. Smith said that this is a memorandum labeled “Law Enforcement Sensitive” that contains details of the Secret Service’s security assessment of the estate, including its vulnerabilities.

Mr. Smith said he does not object to the publication of a single page of the 23-page document that contains the diagram, as long as the narrative text below it is redacted in order to “avoid unnecessarily publicizing sensitive information” about the security assessment.

The filing is the latest salvo in a battle over documents that has been a fixture of the case.

Bid to Hide Evidence Undermines Trial, Trump Says

The former president’s legal team has argued that disclosure of evidence that Mr. Smith and his team have sought to keep secret by filing it under seal could prove that prosecution and the Biden administration have colluded to target President Trump.

As part of the fight over documents, President Trump’s attorneys filed multiple motions on Jan. 16, asking Judge Aileen Cannon to compel discovery. The motions included several exhibits under seal, including emails obtained through the Freedom of Information Act (FOIA) and containing names and identifying information about government officials.

Defense attorneys have asked to unseal this information, arguing that court filings are “matters of public record.”

Former president and current GOP presidential candidate Donald Trump addresses the press at Mar-a-Lago in West Palm Beach, Fla., on Feb. 16, 2024. Joe Raedle/Getty Images

They asked the court to force Mr. Smith to turn over “exculpatory, discoverable evidence in the hands of senior officials at the White House, [Department of Justice], and FBI who provided guidance and assistance as this lawless mission proceeded, and the agencies that supported the flawed investigation from its inception,” including the National Archives and Records Administration (NARA) and the Office of the Director of National Intelligence.

A significant portion of the new evidence President Trump is requesting has been redacted in the publicly available Jan. 16 court filing, with redactions featured in such sections of the filing as “Early Indication of NARA bias,” “The White House Instructs NARA To Contact Prosecutors,” and “NARA’s Sham ‘Referral.’”

In the indictment against President Trump, the prosecutors claimed that NARA independently referred the case to the Department of Justice, but defense attorneys argue that this was false and that the White House had instructed NARA to involve prosecutors.

“Though the Special Counsel’s Office has suppressed these communications, we know from FOIA releases that NARA started to coordinate with the Inspector General of the Intelligence Community by Jan. 25, 2022,” the defense argued.

President Trump’s attorneys also stated that the Biden administration tried to “cover up evidence of [its] biased participation in the investigation” based on several redacted NARA emails.

In a Jan. 22 filing in response to a sealing application by Mr. Smith’s team, the former president criticized Mr. Smith for failing to adequately support his request to seal certain portions of President Trump’s motions to compel discovery—materials the defense has a right to access to prepare its case.

President Trump’s attorneys argued in the filing that Mr. Smith’s sealing requests undermine their client’s ability to get a fair trial.

Smith Team Response

On Jan. 18, Mr. Smith filed a response to President Trump’s Jan. 16 motion to compel discovery. In it, Mr. Smith said he supports “full transparency of the record” but opposes President Trump’s motion to disclose certain materials out of concern for witness safety.

“Although safety of prospective witnesses is a prime concern, it is not the only one,” Mr. Smith wrote in opposition to President Trump’s motion, adding that “public disclosure of witness identities or their statements in advance of trial also risks infecting the testimony of other witnesses or unnecessarily influencing the jury pool.”

Mr. Smith objected to the unsealing of any information requested in President Trump’s Jan. 16 motion to compel discovery.

Further, Mr. Smith claimed that President Trump’s latest motion to compel discovery was “replete with mischaracterizations and baseless arguments.”

In the Jan. 22 filing, President Trump’s attorneys accused Mr. Smith’s team of taking “unprecedented steps to fuel biased press coverage and public interest in the proceedings in order to interfere with President Trump’s leading campaign for the presidency.”

President Trump’s attorneys also said in the Jan. 22 filing that Mr. Smith made only “vague claims” concerning witness safety and national security in opposing the former president’s request for evidence that could help him prove his innocence.

The former president’s attorneys further argued that it’s “difficult to understand” how the case could even proceed if the court fully grants Mr. Smith’s request to keep some evidence hidden.

The Charges

Originally, Mr. Smith indicted the 45th president on 37 counts in connection with allegations that President Trump willfully retained classified documents, obstructed justice, and made false statements in connection with the sensitive documents he kept at his Mar-a-Lago home.

On June 13, 2023, President Trump pleaded not guilty to the 37 charges, which include alleged violations of the Espionage Act, which criminalizes unauthorized possession of defense information.

In a superseding indictment issued on July 27, 2023, Mr. Smith’s team accused President Trump of conspiring with his staff to delete some security footage so that the grand jury in the case would not see all the evidence.

Mr. Smith charged President Trump with an additional three charges in the superseding indictment: willful retention of national defense information and two charges in connection to claims that he allegedly told a Mar-a-Lago worker to delete security tapes to prevent a grand jury from seeing them.

The additional indictment brought the total number of charges against President Trump to 40.

He has pleaded not guilty and said the entire case—which he has called the “box hoax”—is part of a ploy to undermine his presidential comeback bid.