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Lawyers for Donald Trump have once again urged a federal judge to grant them access to the classified documents that special counsel Jack Smith wants to redact.
Trump is facing dozens of felony charges accusing him of illegally retaining classified documents at his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House and hiding them from government investigators. The 37 charges include retaining classified information, obstructing justice and making false statements, among other crimes.
He has pleaded not guilty to the charges in June. The trial is set for May 20, 2024, but could be delayed.
Earlier in December, Trump's attorneys requested access to documents filed by Smith's office under Section 4 of the Classified Information Procedures Act (CIPA), which are off-limits to defense counsel.
In a filing in "further support" of the motion on Wednesday, Trump's lawyers argued that Smith's office's claim that the "contours" of the motion are too sensitive to be disclosed to them is "frivolous." They said the court should reject the office's "attempt to hide unclassified arguments from President Trump's cleared counsel."
Trump's lawyers also said the special counsel's office has conceded that portions of the documents are marked unclassified, including some of the office's "argument sections."
Smith's office cannot avoid disclosure of the entire filing based on the "vague claim that 'some'—but apparently not all—of the unclassified paragraphs in its submission would 'risk revealing classified information,'" the lawyers wrote.
They added: "CIPA does not apply to unclassified information. Thus, there is no basis for withholding these aspects of the Office's filing from cleared counsel."
Trump's lawyers also argued that the court should reject the special counsel's office's assertion that "no counsel or defendant has a need-to-know the information the Government seeks to withhold from Trump and his counsel."
Classified information was available to Trump while he led the county, his attorneys also argued.
"Under those circumstances, it is extraordinary, unprecedented, and improper for the Special Counsel's Office to try to withhold such information from the defense as the Office seeks to use this prosecution to target the leading candidate in the 2024 presidential election," they wrote.
Smith's office is not the "sole arbiter of President Trump's 'need to know,'" his lawyers also wrote, arguing that the need-to-know requirement may be waived for former presidents.
Trump "is entitled to a waiver because he had access to the information at issue, even if not the particular documents," they wrote.
Trump's lawyers also argued that courts are "appropriately skeptical" of ex parte proceedings. An ex parte proceeding occurs at the request of and for the benefit of one party, usually without the knowledge and participation of another party.
"At minimum, cleared counsel should be permitted to review and contest the prosecution's proffered justifications and claimed evidentiary basis, if any, for ex parte proceedings," they wrote.
In conclusion, they wrote that Trump "respectfully submits" that the court should order Smith's office "to provide his cleared counsel with attorneys'-eyes-only access" to all submissions under CIPA Section 4 and to file redacted versions of those submissions on the public docket.
Newsweek has contacted Trump's attorneys and Smith's office for further comment via email.
In a court filing on December 20, Smith said that neither Trump nor his co-defendants in the case have provided any reason "remotely justifying a deviation from the normal process, in which courts examine and decide CIPA Section 4 motions in camera [in private] and ex parte."
Trump's prior access to classified materials as well as his defense attorneys' security clearances are "all beside the point," Smith wrote. A security clearance "is not an automatic entitlement to classified information; an individual must also have a need-to-know the information, and no counsel or defendant has a need-to-know the information the Government seeks to withhold from Trump and his counsel."
The classified documents case is one of four criminal prosecutions Trump is facing as he seeks to return to the White House.
A trial is set for March 4, 2024, in Washington on federal charges related to Trump's efforts to overturn the 2020 presidential election.
He is also charged in Georgia over his efforts to overturn that state's vote in the election, as well as in New York in connection with a hush money payment made to an adult film actress during the 2016 presidential campaign. Trump has denied wrongdoing in all of the cases.
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About the writer
Khaleda Rahman is Newsweek's National Correspondent based in London, UK. Her focus is reporting on education and national news. Khaleda ... Read more