Judge Aileen Cannon’s scheduling of a hearing in the Mar-a-Lago case to determine the reach of the prosecution team arrayed against President Trump could compel Special Counsel Jack Smith to disclose the nature of his coordination — if any — with the Biden administration. 

Mr. Trump’s contention is that Mr. Smith — who works for the Biden Department of Justice but is meant to act independently — is, in fact, a secret proxy for President Biden. The 45th president will have the opportunity to air that argument at a session devoted to what Judge Cannon calls “Defendants’ Consolidated Motions to Compel Discovery and to Define Scope of Prosecution Team.” 

The existence of these three days of hearings — June 24-26 — is itself a victory for Mr. Trump and a defeat for the special counsel, who has argued that such sessions have never been held in the Southern District of Florida. He insists there is no law to support such an event. For Mr. Trump, though, the suggestion that Mr. Smith is coordinating with other organs of the federal government possesses legal as well as political salience. 

The Department of Justice’s own manual mandates that “it is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team.” That obligation was articulated in Brady v. Maryland and subsequent Supreme Court cases, which hold that defendants are entitled to all evidence that could be exculpatory and that is material to the case. Failure can result in a mistrial.

In a 1988 case, Taylor v. Illinois, Justice William Brennan wrote, “Criminal discovery is not a game. It is integral to the quest for truth and the fair adjudication of guilt or innocence.” Mr. Trump argues that to clear his name he requires evidence culled not only from the special counsel’s office, but also from the National Archives, the Central Intelligence Agency, the Defense Department, the National Security Agency, and others. 

The manual adds that “prosecutors should begin considering potential discovery obligations early in an investigation that has national security implications and should also carefully evaluate their discovery obligations prior to filing charges.” Mr. Smith reports to Attorney General Garland and is a DOJ employee. Mr. Trump is also challenging the prosecutor’s appointment on Appointments Clause grounds. 

Mr. Trump, in a filing requesting further discovery,  accuses Mr. Smith of disregarding “basic discovery obligations and DOJ policies in an effort to support the Biden Administration’s egregious efforts to weaponize the criminal justice system.” The former president urges Judge Cannon to reject Mr. Smith’s “narrow” definition of the prosecution team in favor of a more expansive vision of who is working to convict him for violating the Espionage Act. 

In seeking more documents, Mr. Trump alleges “extensive coordination and resource sharing with the White House, senior officials at DOJ and FBI, and numerous agencies in the Intelligence Community.” He adds that Mr. Smith “cannot reap the benefits of these coordinated activities while ignoring exculpatory information and other discoverable evidence.” Mr. Smith was appointed two days after Mr. Trump announced his latest bid for the presidency.

Mr. Smith maintains that the prosecution team is limited to “the prosecutors … and law enforcement officers of the [FBI] … who are working on this case, including members of the FBI’s Washington Field Office and Miami Field Division.” Mr. Trump, though, has his eyes on the “National Security Council, which is part of the White House’s Executive Office of the President and the White House Counsel’s Office.”

Mr. Trump writes Judge Cannon that the “Biden Administration clearly took steps to create a false appearance of separation from the investigation that it was driving,” but that Mr. Smith must nevertheless “produce discoverable information from the White House’s files.” This section of the brief is marbled with redactions but the former president has elsewhere argued for a direct role for the White House in his prosecutions. 

A New York Times article dating from 2022 reported that “as recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted.” Mr. Biden, the Times further reported, “said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor.” Mr. Trump alleges that the president was using the Times to directly telegraph his displeasure to Mr. Garland, who, a few months later, would appoint Mr. Smith.  

Another link between 1600 Pennsylvania Avenue and the prosecution of the 45th president surfaced in billing receipts submitted by an erstwhile special prosecutor, Nathan Wade, who for a time led the racketeering case against Mr. Trump brought by the prosecutor’s former girlfriend, District Attorney Fani Willis. The work for which he was paid more than $650,000 included meetings with White House counsel.