Prosecutors in former President Donald J. Trump’s classified documents case sought on Thursday to rebut his claim that he is a victim of selective prosecution, rejecting the former president’s argument that he was being treated more harshly than President Biden had been in an investigation into his handling of sensitive materials.
The evidence of potential wrongdoing is “starkly different” in the two matters, the prosecutors wrote.
In one of an array of motions to dismiss the documents case against Mr. Trump filed last month, the former president’s lawyers cited the decision by Robert K. Hur, the special counsel who scrutinized Mr. Biden’s handling of classified information when he was out of office, not to bring charges. If Mr. Biden was not charged, Mr. Trump should not be either, Mr. Trump’s lawyers maintained.
But prosecutors working for the special counsel investigating Mr. Trump, Jack Smith, accused the Trump legal team of misrepresenting Mr. Hur’s findings. Despite some “superficial similarities between the two cases,” they argued that the evidence that Mr. Trump committed crimes was far stronger and noted that Mr. Hur himself explained in his report how Mr. Trump’s alleged conduct — including attempted obstruction — was far worse.
“The volume, sensitivity and storage of the documents all point in the same direction — that Trump’s conduct was more serious — thus confirming that the two cases are not ‘nearly identical’ and that there are ‘legitimate reasons for viewing them differently,’” they wrote.
They added: “Trump has not shown that Biden’s conduct, as described in the Hur Report, makes him a similarly situated comparator for purposes of his selective prosecution claim.”
Selective prosecution motions are notoriously difficult to win because they require defendants to show that the government effectively discriminated against them by charging them but not charging “similarly situated individuals.”
Prosecutors wrote that Mr. Trump’s decision to hold on to dozens of highly classified records as if they were “keepsakes, memorabilia or trophies,” store them in “an unsecure location” and then repeatedly obstruct attempts by the government to retrieve them, including through a grand jury subpoena, made his behavior different.
Such factors separated his behavior from that of Mr. Biden and a litany of other former officials — like former Vice President Mike Pence — “who have retained classified documents beyond their terms in office through inadvertence or carelessness, but then returned them upon their discovery,” they wrote.
Mr. Trump “has not identified anyone who has engaged in a remotely similar battery of criminal conduct and not been prosecuted as a result,” the prosecutors wrote. “He has likewise failed to provide any evidence that his indictment was brought solely to retaliate against him for exercising his legal rights, rather than because he flagrantly and repeatedly broke the law.”
The request by the prosecutors to Judge Aileen M. Cannon to reject Mr. Trump’s claims that he had been treated unfairly was only one of several court filings they submitted on Thursday seeking to rebut a flurry of motions by defense lawyers to dismiss the classified documents case based on myriad other arguments.
The prosecutors also sought to counter Mr. Trump’s efforts to attack the law he is accused of violating, to question the legality of the special counsel prosecuting him, to claim that the records he has been charged with removing from the White House belonged to him and to argue that he is shielded from prosecution by a sweeping form of executive immunity.
The multiple filings by Mr. Smith’s team came as the defense and prosecution were waiting for Judge Cannon to issue a critical decision on when the classified documents case will go to trial.
At a hearing last week, in Federal District Court in Fort Pierce, Fla., prosecutors asked Judge Cannon to start the trial on July 8. Mr. Trump’s lawyers, claiming he could not be tried fairly during his presidential campaign, said the proceeding should be delayed until after the election, but also said they could live with a date of Aug. 12.
In another of their motions to dismiss the case, Mr. Trump’s legal team had argued that the charges should be dropped based on a claim that Attorney General Merrick B. Garland had no legitimate authority to appoint Mr. Smith as special counsel and that prosecutors working for him had no legitimate funding.
Noting that there had been many special prosecutors appointed by attorneys general, and that the Supreme Court had recognized that authority in a Watergate-era case, prosecutors rejected that idea, too. “Each argument is incorrect, and neither supports dismissal of the charges that were properly returned by a grand jury in this district,” they wrote.
The Trump legal team argued that the case should be dismissed because a law called the Presidential Records Act, which makes official White House files public property, allows presidents, before they leave office, to designate certain materials like diaries as personal records.
They argued that Mr. Trump’s sending of the files to his Florida compound indicated that he had implicitly done so and that there was no second-guessing such a determination. But Mr. Smith’s team mocked the idea that official classified documents could be personal files — while saying that even if they were, it would not matter, since Mr. Trump was not authorized to possess that information after he was no longer in office.
“Trump’s claims rest on three fundamental errors, all of which reflect his view that, as a former president, the nation’s laws and principles of accountability that govern every other citizen do not apply to him,” prosecutors wrote. A related motion by Mr. Trump’s team argued that he was absolutely immune from being charged in the case since its origins traced back to what they asserted was his decision, while still president, to convert the White House files into his personal property. (There is no evidence that Mr. Trump specifically took that step.)
Mr. Trump has also challenged his other federal case — in which he stands accused of plotting to subvert the 2020 election — with an argument that he is immune to prosecution on the charges. The claim in that case is now before the Supreme Court, which has scheduled arguments on the question for April 25. Noting that none of the actions for which Mr. Trump is charged in the classified documents case took place while he was in office, Mr. Smith’s team called the immunity claim “frivolous” and argued that it was being “offered for one transparent purpose — to delay the trial.”
