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Special Counsel May Not Have Reviewed Records Before Indicting Trump

Rebecca Downs
Rebecca Downs  |  August 04, 2023 7:15 AM

The problems with Special Counsel Jack Smith's indictment against former and potentially future President Donald Trump keep coming up. On Thursday afternoon, not long before Trump was arraigned in Washington D.C., CBS News' Catherine Herridge reviewed some curious information, which is that Smith may not have reviewed records before indicting. 

Trump entered a not guilty plea to the four charges brought against him to do with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.

Thousands of pages of records were turned over by former New York City Police Commissioner Bernard Kerik in July, who is an ally of Trump. His attorney, Tim Parlatore, used to work for Trump's legal team.

As the CBS News report mentions, quoting Parlatore at length, with added emphasis:

The documents were submitted to Smith on July 23, according to emails reviewed by CBS News. A source close to Kerik's legal team said at the time that they believed the records, which include sworn affidavits from people raising concerns about the integrity of the 2020 presidential contest, show there was a genuine effort to investigate claims of voter fraud in the last election.

In an Aug. 2 email to Parlatore, reviewed by CBS News, a special counsel's office prosecutor requested "responsive documents as to which the Trump campaign is no longer asserting a privilege," referring to the Kerik records Parlatore said he previously provided.

Parlatore said he was "stunned" when, after the indictment came down, the prosecutor contacted him asking for the records he said he had already provided. Parlatore said the "records are absolutely exculpatory."

"They bear directly on the essential element of whether Rudy Giuliani, and therefore Donald Trump, knew that their claims of election fraud were false," Parlatore said. "Good- faith reliance upon claims of fraud, even if they later turn out to be false, is very different from pushing fraud claims that you know to be false at the time."

Parlatore told CBS News last week he expected Kerik to be interviewed by investigators "soon," but that has not yet happened. Parlatore was among the key lawyers working for Trump in the Justice Department's investigations into the former president, but left the legal team in May.

That the records "are absolutely exculpatory," according to Parlatore, is huge. The case is already a weak one, in part because it has to do with looking into Trump's mindset, and whether or not he actually believes he lost the election. 

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Attorney and Law Professor Alan Dershowitz was among those who spoke in-depth about the indictment. One of his criticisms is because it speaks to Trump's mind. "I'm not going to probe his unconscious and see whether deep in the recesses of his mind he had doubts about it. Probably everybody has doubts about it. When I argue a case I have some doubts in the back of my mind," Dershowitz said on "The Dershow."

Not only did Parlatore indicate that he hasn't yet been interviewed, but the special counsel didn't want to talk about it. "A spokesperson for the special counsel declined to comment Thursday when asked if they had reviewed the material," the CBS News report read.

Former federal prosecutor Scott Frederickson is also quoted. "It may have been an oversight," he offered. "Kerik may not be a primary witness to the case. I tend to think they (the special counsel) are gathering evidence for discovery in this case, and may not have been essential to the indictment. Discovery is a critical stage, and the special counsel wants to be sure all materials are shared," Frederickson added.

According to The Hill, which was one of the outlets that was randomly selected to be present in the courtroom, Smith was reminded about exculpatory evidence. "Trump rarely glanced at prosecutors, but he did look over when the judge reminded them of their obligations to turn over exculpatory evidence," the write-up mentioned.

If what Parlatore is alleging is  true, that doesn't look good for Smith. It would be at best sloppy and messy, which won't help his case against Trump when people are already pointing to election interference for the 2024 presidential election. 

That may be how these people operate, though.

Matt covered earlier on Friday how back in June, when it comes to the indictment that Smith brought to do with Trump's handling of classified documents, a prosecutor in the case allegedly tried to pressure Stanley Woodward, the lawyer for Walt Nauta, an aide of the former president who is also indicted.

Smith's issues don't just stem from these charges, but from those brought almost a decade ago. 

One example has to do with former Gov. Bob McDonnell, who Smith charged in 2014. The U.S. Supreme Court unanimously overturned the conviction in 2016. 

Dershowitz spoke about Smith's style there as well, this time via Substack:

But prosecutor Jack Smith has a history of bringing speculative cases.

He won a corruption conviction against former governor of Virginia, Robert McDonnell, in 2014 only for it to be overturned by the U.S. Supreme Court in a unanimous 8-0 decision.

The Court concluded that there was no explicit proof of the charges and warned that 'the uncontrolled power of criminal prosecutors is a threat to our separation of powers.'

Yes, Smith is known for his creativity, but creativity has no proper role in the criminal justice system, especially when it comes to prosecuting political opponents.

Sen. Tom Cotton (R-AR) also raised issues with Smith's style in charging McDonnell during his Tuesday appearance on Fox News' "The Ingraham Angle," pointing out that unanimous decision from the Court was "because [Smith's] legal theories were so far-fetched."

Trump remains the clear frontrunner in the Republican presidential primary, with RealClearPolitics (RCP) having him at 53.1 percent for a spread of +35.5 against his primary opponents. A 2024 hypothetical rematch between Trump and Biden to be close, with Biden up by just +0.9, at 44.9 percent to Trump's 44 percent, according to RCP.

The timing of the indictment is also certainly curious, as many have raised, given the scandals that have come out about the Biden family. Earlier this week testimony from Devon Archer, the former business partner of Hunter Biden, detailed how then Vice President Joe Biden was indeed involved in son Hunter's business dealings.