Jack Smith responds to blistering Hur report for first time, says Biden, Trump cases not similar

Special Counsel Jack Smith’s prosecutors said that former President Trump’s handling of classified documents is not ‘remotely’ similar to how President Biden also handled sensitive national security information as laid out in dueling Special Counsel Rob Hur’s report released this month. 

The 12-page filing Monday countering Trump’s motion to dismiss the indictment ‘based on selective and vindictive prosecution’ serves as Smith’s first response to the blistering Hur report. 

‘The defendants have 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,’ Assistant Special Counsel David Harbach wrote.

Harbach said the ‘primary comparator’ of Trump and co-defendants, body man and valet Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira, is President Biden, whose conduct is described in the recently issued Hur report on the investigation of classified documents recovered from Biden’s primary residence in Delaware and the Penn Biden Center.

‘But as the Hur Report itself recognizes, ‘several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear,’’ Harbach wrote. ‘Most notably, Trump, unlike Biden, is alleged to have engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings. And the evidence concerning the two men’s intent – whether they knowingly possessed and willfully retained such documents – is also starkly different, as reflected in the Hur Report’s conclusion that ‘the evidence falls short of establishing Mr. Biden’s willful retention of the classified Afghanistan documents beyond a reasonable doubt.’’

Hur’s report, which concluded that no criminal charges were warranted, surmised that at trial, Biden ‘would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.’ 

The special counsel, therefore, asserted that it would be difficult to convince a jury that they should convict him, ‘by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness.’ It also cited how Biden mixed up the date of the death of his son, Beau. 

The White House and Biden allies have deemed the details from the Hur report on Biden’s age and mental fitness as ‘gratuitous’ political attacks.

Although, as Harbach laid out Monday, many government officials have possessed classified documents after the end of their terms in office – often inadvertently, sometimes negligently, and very occasionally willfully – as well as a ‘very small number of cases in which former government officials who have been found in possession of classified documents have briefly resisted the government’s lawful efforts to recover them,’ the special counsel’s team considers Trump’s actions unique.

‘There has never been a case in American history in which a former official has engaged in conduct remotely similar to Trump’s,’ Harbach wrote. 

‘He 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 at his heavily trafficked social club,’ he wrote. ‘When the National Archives and Records Administration (‘NARA’) initially sought their return (before learning that they contained classified national defense information), Trump delayed, obfuscated, and dissembled. Faced with the possibility of legal action, he ostensibly agreed to comply with NARA’s requests but in fact engaged in additional deception, returning only a fraction of the documents in his possession while claiming that his production was complete.’

Harbach goes on to highlight how, when presented with a grand jury subpoena demanding the return of the remaining documents bearing classification markings, ‘Trump attempted to enlist his own attorney in the corrupt endeavor, suggesting that he falsely tell the FBI and grand jury that Trump did not have any documents, and suggesting that his attorney hide or destroy documents rather than produce them to the government.’ The prosecutor said Trump enlisted Nauta ‘in a scheme to deceive the attorney by moving boxes to conceal his (Trump’s) continued possession of classified documents’ and continued a pattern of ‘obstructive conduct’ by allegedly seeking to have some security camera footage deleted.

Trump has said the security camera footage in fact was never deleted, dismissing the assertion as ‘prosecutorial fiction.’

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