Special Counsel Jack Smith’s latest attempt to deny President Trump access to the evidence he seeks doubles as a pugnacious paraphrase of the case to Judge Aileen Cannon. Mr. Smith, 318 days after his indictment was issued, declares that it is  “necessary to set the record straight on the underlying facts that led to this prosecution.”

Mr. Smith’s startlingly strident 67-page brief comes in response to Mr. Trump’s motion to compel discovery from government officers with respect to the Mar-a-Lago case. He contends that this request is reasonable because his prosecution is a political project of the Biden administration writ large, not the exclusive and independent purview of the special counsel. For his part, Mr. Smith accuses the 45th president of trading in “speculative, unsupported, and false theories.”

The special counsel denies that he has been parsimonious, writing that he has ceded to Mr. Trump “over 1.28 million pages of unclassified discovery and all of the CCTV footage.” Mr. Smith contends that he has met his “constitutional and rule-based discovery obligations.” He calls Mr. Trump’s requests “so generalized that it is difficult to decipher what they seek.”

In requesting that Judge Cannon rebuff what Mr. Smith calls Mr. Trump’s “broad-brush and undifferentiated approach” to discovery, the government is asking the jurist to endorse the prosecutor’s own stance on the Brady rule, a Supreme Court dictate derived from the constitutional demands of due process. 

Under Brady, the government is required to disclose to the defendant any material bit of evidence that could prove exculpatory. The rule has come to be seen as a bedrock of criminal defense law, and indispensable to the rights of the accused. A violation of its strictures is always grounds for dismissal. That makes it risky ground for a prosecutor on which to plant his flag.     

Mr. Smith writes that it is necessary to “clear the air” because Mr. Trump’s “misstatements, if unanswered, leave a highly misleading impression on a number of matters.” In striking language, the special counsel accuses Mr. Trump of concocting a “pervasively false narrative” of how the documents case originated in order to “cast a cloud of suspicion over responsible actions by government officials diligently doing their jobs.” 

The special counsel calls the charging of Mr. Trump with the Espionage Act and other crimes of obstruction “extraordinary” because the underlying actions involve “engaging in calculated and persistent obstruction of the collection of Presidential records, which, as a matter of law, belong to the United States for the benefit of history and posterity.” Mr. Trump contends that the records were “personal” under the terms of the Presidential Records Act.

Mr. Smith asserts that “government officials performed their tasks with professionalism and patience in the face of unprecedented defiance” from Mr. Trump and his camarilla. He calls Mr. Trump’s “storyline”and “counternarrative”  exercises in selective narrative that put a “nefarious gloss on innocuous events.” The prosecutor is unsparing in his accusation that Mr. Trump horded “secret military invasion plans and showed them to others.”

Mr. Trump argues that Mr. Smith is no lone wolf, but a proxy of the White House. If that were true, under Brady, Mr. Trump would be entitled to documentation of the “prosecution team,” no matter how far-flung. Mr. Smith contends that the special counsel regulations under which he operates insulate him from contact with the broader administration. 

It is possible, though, that the imperative Mr. Smith feels to “set the record straight” derives just as much from a desire to change the mind of the jurist as it is to fend off the claims of the 45th president. He recently clashed with Judge Cannon over her contemplation of jury instructions that appeared sympathetic to Mr. Trump’s position that the Presidential Records Act governs this case. 

Another audience altogether for Mr. Smith’s summary of the case is possible. That would be the United States Court of Appeals for the 11th Circuit, which oversees Judge Cannon. If she rules against him and grants Mr. Trump the expansive discovery he seeks, Mr. Smith could pursue an immediate appeal. That request for review would likely lean heavily on the distillation of the case he has just authored in this brief.