Special Counsel Jack Smith’s allegation that President Trump is peddling a “conspiracy theory” could signal a sharper rhetorical turn as the Mar-a-Lago documents case, presided over by Judge Aileen Cannon, teeters toward a trial. 

The accusation comes in a brief opposing Mr. Trump’s efforts to have the documents case against him — he is charged with 40 crimes — dismissed on the grounds of “vindictive and selective prosecution.” The 45th president has also asserted that the case should fail on vagueness grounds and because Mr. Smith’s appointment runs crosswise with the Appointments Clause.

Mr. Smith calls these grounds “baseless theories of political animus and bias.” He cites the Supreme Court for the proposition that the government enjoys  “broad discretion to enforce the Nation’s criminal laws” and that a “presumption of regularity supports their prosecutorial decisions.” He allows, though, that the Due Process Clause ordains that the “decision whether to prosecute may not be based on an unjustifiable standard.”

A key case out of the United States Court of Appeals for the 11th Circuit—  which oversees Judge Cannon — holds that a case for selective and vindictive prosecution  “must demonstrate  that the federal prosecutorial policy had a discriminatory effect and  that it was motivated by a discriminatory purpose.” This bar has not been met in nearly 30 years. A sister circuit, at the District of Columbia, categorizes these claims as  “exceedingly difficult to make.”

The special counsel explains that for a selective prosecution claim to succeed, it requires the plaintiff to show that other similarly situated plaintiffs were treated differently. Here though, he writes that  “there has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s.”

Mr. Smith allows that “there have been many government officials who have possessed classified documents after the ends of their terms in office — often inadvertently, sometimes negligently, and very occasionally willfully.” Mr. Trump, though, “intentionally took possession of a vast trove of some of the nation’s most sensitive documents — documents so sensitive that they were presented to the President — and stored them in unsecured locations.”

Mr. Trump, Mr. Smith writes, “delayed, obfuscated, and dissembled” when approached about returning the documents stored at Mar-a-Lago. He then, the prosecutor alleges, “engaged in additional deception, returning only a fraction of the documents in his possession while claiming that his production was complete.” He then  “attempted to enlist his own attorney,” Evan Corcoran,  “in the corrupt endeavor.” 

In a remarkable pivot, Mr. Smith notes that Mr. Trump has “ not identified anyone who has engaged in a remotely similar suite of willful and deceitful criminal conduct and not been prosecuted.  Nor could they.  Indeed, the comparators on which they rely are readily distinguishable.” The comparison that Mr. Trump has raised most frequently is President Biden. Mr, Smith, though, writes that Mr. Trump, unlike Mr. Biden, “is alleged to have engaged in extensive and repeated efforts to obstruct justice.” 

The citation to support that claim is to the report of another special counsel, Richard Hur. Mr. Hur was tasked with investigating whether Mr. Biden should be charged for his own improper storage of documents. Mr. Hur concluded that the “evidence falls short of establishing Mr. Biden’s willful retention of the classified Afghanistan documents beyond a reasonable doubt.” He also calls the president an “elderly man with a poor memory.”

Next, Mr. Smith —  turns to what he calls Mr. Trump’s “conspiracy theory” —  that the special counsel is a “puppet” and “stalking horse” for President Biden. Indignantly, the lawyer contends that  the “prosecutorial decisions made by the Department of Justice generally, and the Special Counsel specifically, have been made on the basis of the facts and the law, not political considerations.”

The special counsel denounces as “baseless” Mr. Trump’s theory that the “prosecutorial decisions in this case have been made by the incumbent president, communicating his direction via the news media.” The 45th  president maintains that both of Mr. Smith’s cases constitute “election interference” and are efforts to win the 2024 election in the jury room rather than the ballot box.

The case is set to be heard on May 20, though a hearing on Friday has been set to determine whether that date is feasible. On the same day, March 1, closing arguments will be heard to decide if the district attorney of Fulton County, Fani Willis, will be disqualified from her own prosecution of Mr. Trump, on account of her romantic relationship with the attorney she hired to try that case.