By Donald Trump’s attorneys are seeking a vast trove of information about how the U.S. government investigated both him and his allegations of voter fraud in 2020 — the latest sign that the former president and 2024 Republican front-runner will fight charges in D.C. of election obstruction by relying on his unfounded allegation that President Biden’s victory was “stolen” and other baseless conspiratorial claims.
In court papers filed Monday, Trump’s legal team sought permission to compel prosecutors to turn over reams of information on the 2020 election and Jan. 6, 2021, Capitol attack from the FBI, national security and election integrity units of the Justice Department, the Department of Homeland Security, the Capitol Police, the Defense Department, the D.C. police department, the National Guard, and members of Congress.
Whether Trump genuinely believed the election was stolen may be a matter for trial, his lawyers wrote, but prosecutors cannot “suppress and withhold from President Trump information that supports this defense and related arguments regarding good faith and the absence of [his] criminal intent.” It was “certainly not criminal,” they added, “for President Trump to disagree with officials now favored by the prosecution and to rely instead on the independent judgment that the American people elected him to use while leading the country.”
The wide-ranging request for materials echoes many themes he has hammered on the campaign trail criticizing the charges against him: allegations of a politically motivated prosecution driven by his main presidential rival and questioning the integrity of the U.S. election system, national security and intelligence communities, and those who might testify against him at trial. His attorneys also raised a baseless claim popular among his supporters — that the violence at the Capitol could have been the result of a “failed sting operation” by undercover government agents rather than Trump’s directions. No such evidence has been uncovered in hundreds of criminal cases adjudicated to date.
Federal criminal defendants typically can and often do file shotgun-blast requests for information in hopes of finding gaps in the prosecution’s case or at least slowing down the push toward trial. However, courts give U.S. prosecutors broad discretion to decide which evidence reasonably may be helpful to the defense and thus must be turned over. Their obligation to produce evidence is also limited to information available to the prosecution team — not everything known to the U.S. government at large.
Even so, Trump’s demands in his historic prosecution are far-flung. In more than 70 pages of legal motions and 300 pages of supporting exhibits, Trump lawyers, led by Todd Blanche and John Lauro, argued for broad leeway to compel special counsel Jack Smith’s prosecution team to turn over vast swaths of information. The defense’s 59 requests include the identification of “informants and other undercover operatives” in the Jan. 6 attack; information about security measures that day, including the investigation of alleged pipe bombs outside the Democratic and Republican national headquarters; assessments of cyberattacks and other actual or attempted interference in the election, among many other things.
Claiming that he is a victim of political persecution by the Biden administration because he is Biden’s primary 2024 rival, Trump’s lawyers also filed requests seeking any communication or “coordination” by the Justice Department with the Biden administration or family, including his son Hunter. They also sought information about the Justice Department’s interactions with Trump’s vice president, Mike Pence, a key witness named in Trump’s indictment.
Pence, Trump’s defense suggested, could have been motivated to align his story with prosecutors’ desires because of classified documents found at his home by his lawyer months after an FBI search of Trump’s residence and the discovery of classified documents at Biden’s home in Delaware and a separate think tank office. The Justice Department closed its investigation of Pence in June without charges.
Trump has pleaded not guilty to an Aug. 1 indictment accusing him of plotting to undermine the federal government, obstruct Congress’s legitimate certification of the 2020 presidential election and disenfranchise American voters.
U.S. prosecutors allege that then-President Trump unleashed a flood of false claims about purported election fraud and used deceit and lies to get state, local and federal officials to overturn the results, culminating in the Capitol riot. “The attack on our nation’s Capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy,” Smith said when charges were brought. “It was fueled by lies, lies by the defendant.”
The case is one of four felony prosecutions facing Trump this year. The others include a Georgia state case similarly alleging that Trump tried to obstruct that state’s election results; a federal indictment in Florida over his alleged retention and mishandling of classified documents and obstruction after leaving the White House; and a New York state case accusing him of business fraud and covering up a hush money payment made during the 2016 election campaign.
Trump’s requests Monday are a legal long-shot. To convince judges to order the government to turn over more material, defendants typically must show that prosecutors have unreasonably delayed or refused to turn over specific, relevant materials important to the defense. In many instances Trump instead asked for large categories of information, including documents that may not be available to the Justice Department or usable at trial.
Trump’s filings included a letter sent to his legal team last month in which prosecutors called the requests far too sweeping and vague, and said the government has already shared with Trump everything he is entitled to see.
“The prosecution team does not include agencies and components whose personnel are not working on this case,” they wrote. “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 the Intelligence Community writ large.”
Separately Monday, U.S. District Judge Tanya S. Chutkan denied an earlier Trump request to subpoena House members, the National Archivist, and attorneys for Biden and the Homeland Security Department in pursuit of purported “missing materials” related to a House committee that investigated the Capitol attack.
The judge said the House Jan. 6 committee did not actually ship out to other agencies any materials under most of the categories sought by Trump, and ones they did have already been turned over by prosecutors to his defense.
For instance, Chutkan said, Trump’s defense sought video recordings in addition to written transcripts that it has already received of committee interviews, but failed to establish why it needed video to be able to challenge witness testimony.
The judge expressed skepticism about what she cast as Trump attorneys’ vague and catchall assertion of the importance and relevance of so-called “missing records” to the defense. “The broad scope of the records that Defendant seeks, and his vague description of their potential relevance, resemble less ‘a good-faith effort to obtain identified evidence’ than they do ‘a general “fishing expedition,’” that the law does not allow, Chutkan wrote.