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Prosecutors push back on Trump bid to delay documents case until after the election

The filing also indicates some of the documents Trump retained were more sensitive than initially believed.
Donald Trump.
Former President Donald Trump in court with his lawyers at his civil fraud trial in New York City on Tuesday.Seth Wenig / Pool / Getty Images

Special counsel Jack Smith is pushing back against former President Donald Trump's bid to delay his trial on charges of mishandling classified information until after the 2024 election, saying there's no "credible justification" to do so.

"The defendants make numerous allegations regarding their access to classified discovery arising from the status of secure facilities, their clearances, and other considerations. Most of the allegations are inaccurate or incomplete; collectively they are misleading," Smith's office said in a court filing Monday, arguing the case should go to trial as scheduled in May.

The filing also says prosecutors know why Trump is believed to have illegally held on to the large cache of national security information after he left the White House, and it suggests some of the information was even more sensitive than prosecutors initially believed.

“That the classified materials at issue in this case were taken from the White House and retained at Mar-a-Lago is not in dispute; what is in dispute is how that occurred, why it occurred, what Trump knew, and what Trump intended in retaining them — all issues that the Government will prove at trial primarily with unclassified evidence,” the filing said, without elaborating.

"Whether the highly classified documents Trump retained at Mar-a-Lago contain national defense information is a fact Trump can try to dispute, but it will hardly be the centerpiece of the trial,” it added.

The government made the assertions in pushing back against Trump's attorneys' claims they need to delay the trial because they haven't reviewed the most sensitive documents, which require security clearances and a secure location to review them in.

Prosecutors said that Trump's attorneys already have access to the vast majority of documents but that a small subset are so sensitive they can't be held in a regular SCIF — a court-approved sensitive compartmented information facility — and require "enhanced security protocols for their transport, review, discussion, and storage."

"The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced," Smith's filing said before it revealed there had "only recently" been some new additions to that subset of documents, "still constituting a small fraction of the overall discovery."

The filing doesn’t say how, when or why the classification was heightened.

Peter Carr, a spokesperson for the special counsel's office, declined to comment on the filing.

Prosecutors acknowledged that "enhanced security protocols have raised additional obstacles to full access" to those materials for the defense but said "the Classified Information Security Officer (‘CISO’) has advised the Government that he expects even those materials to be available for review and discussion by cleared counsel this week."

Prosecutors said that the government is working on establishing a site in Florida secure enough to store the documents and that in the meantime, "with appropriate notice, those documents can be couriered by qualified control officers from the Intelligence Community to a SCIF in south Florida for defense inspection."

In their filing, Trump's attorneys complained that he hadn't yet been able to review the documents himself, but Smith's filing suggested that argument is a straw man.

It said Smith's team is "not aware of any request by Trump to personally appear" to "inspect any documents—a request upon which the necessary arrangements to do so can and will be made. And whatever delay there has been to date in Trump’s personal review of the classified materials, the seven months that remain before trial is more than ample time for him to do so."

An attorney for Trump didn’t immediately respond to a request for comment.

Trump has said he considered the documents his while also suggesting he planned to eventually turn them over to the National Archives. The Archives has said it requested the return of the documents for over a year, and the Justice Department has said a Trump attorney certified last year that all documents with classified markings had been returned. An FBI search of Trump's Mar-a-Lago club later turned up over 100 classified documents, as well as thousands of other documents belonging to the government.

Trump's attorneys last week filed their motion asking to delay the trial until after the election when they also sought to dismiss the Manhattan district attorney's hush-money-related case against him and unsuccessfully sought to delay his ongoing $250 million civil fraud trial. He also contended Smith's other pending case against him in federal court in Washington, alleging he interfered with the election, should be dismissed on the grounds of presidential immunity, and he dropped his $500 million lawsuit against his former attorney Michael Cohen.

Trump had been scheduled to be deposed in that case Monday.

Trump has denied any wrongdoing in the four criminal cases against him and the civil fraud case, contending they are all politically motivated witch hunts.