Jack Smith Files More Evidence in Secret, Under Seal, Despite Team Trump Objections

(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 on Friday filed more evidence, in secret and under seal, without the presence or notification of former President Donald Trump’s attorneys, a practice that the former president’s lawyers have said infringe on their client’s right to open proceedings.

In a Feb. 23 notice of filing at the U.S. District Court, Southern District of Florida, Mr. Smith’s team indicated that they have filed documents related to an order pursuant to CIPA Section 4 rules, delivering them to a classified information security officer in Fort Pierce, Florida.

President Trump has been charged with retaining national defense information, meaning that his case will be tried under the complex rules laid out in the Classified Information Procedures Act (CIPA), which governs how those documents can be used in court.

A CIPA Section 4 motion asks the judge to redact certain information from the classified documents that are turned over to the defense.

More Secret Filings

Mr. Smith’s latest filing indicates that the documents were submitted ex parte, in camera, and under seal.

An ex parte filing means one submitted to the court by one party to legal proceedings without the presence or notification of the opposing party. An in camera filing is one made behind closed doors, so in secret and without public access.

President Trump’s attorneys have objected to any exhibit being filed ex parte. They have also said they oppose any exhibits being filed under seal but that they would not lodge a formal objection until they have had a chance to review the contents.

The former president’s counsel has accused Mr. Smith of infringing on the rights of President Trump and the public to open proceedings by filing exhibits ex parte.

The case has been marked by a battle over documents, extending the pre-trial motions stage and delaying what was initially scheduled to be a May 20 trial date.

The seven-stage CIPA process is sequential, meaning that one stage has to be completed before going on to the next. A key issue is that a delay at one stage of the CIPA process can affect the entire trial schedule.

The former president, who faces 40 counts, has pleaded not guilty and insists the case is a politically motivated bid to hamstring his presidential comeback bid.

Republican presidential candidate and former President Donald J. Trump greets his supporters at Greenville-Spartanburg International Airport in Greer, S.C., on Feb. 20, 2024. Madalina Vasiliu/The Epoch Times

Bid to Hide Evidence Undermines Trial: Trump Attorneys

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 Objects

Mr. Smith has repeatedly objected to President Trump’s motions to compel discovery and file documents not under seal. In some cases, Mr. Smith has raised objections on grounds of witness safety.

For instance, Mr. Smith on Jan. 18 filed a response to President Trump’s motion to compel discovery, with the special counsel saying 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.”

Special Counsel Jack Smith arrives to give remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump in Washington on Aug. 1, 2023. Drew Angerer/Getty Images

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 have also said that Mr. Smith made only “vague claims” concerning witness safety and national security, arguing also 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.