USA v. Trump, et al. Document 375: Response/Reply/Answer (Other)

Florida Southern District Court
Case No. 9:23-cr-80101-AMC
Filed March 7, 2024

Response/Memorandum in Opposition to undocketed Motion to Dismiss for Selective/Vindictive Prosecution by USA as to Donald J. Trump to [328] Notice (Other) (Bratt, Jay)

BackBack to USA v. Trump, et al.

Tags No tags have been applied so far. Sign in to add some.

  Formatted Text Tab Overlap Raw Text Right End
Page 1 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 1 of
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
________________________________/
GOVERNMENT’S OPPOSITION TO DEFENDANT DONALD J. TRUMP’S
MOTION TO DISMISS THE INDICTMENT BASED ON
SELECTIVE AND VINDICTIVE PROSECUTION
Page 2 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 2 of
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................
ARGUMENT ........................................................................................................................
I.
Applicable Law ................................................................................................................... A.
Requirements of a Selective Prosecution Claim ...........................................................
B.
Requirements of a Vindictive Prosecution Claim .........................................................
II.
III.
Trump Fails to Satisfy the First Prong of a Selective Prosecution Claim
Because He Cannot Identify a Similarly Situated Comparator .......................................... A.
Joseph R. Biden ............................................................................................................
B.
Mike Pence..................................................................................................................
C.
Bill

D.
Hillary Clinton ............................................................................................................
E.
James Comey ..............................................................................................................
F.
David Petraeus ............................................................................................................
G.
Samuel “Sandy” Berger ..............................................................................................
H.
John Deutch ................................................................................................................
I.
Deborah Birx ............................................................................................................... Trump Fails to Satisfy the Second Prong of a Selective Prosecution Claim
or Show Actual Vindictiveness .........................................................................................
CONCLUSION ........................................................................................................................

i
Page 3 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 3 of
INTRODUCTION
When Donald J. Trump left the White House in January 2021, he arranged for scores of
boxes holding hundreds of highly classified documents to be sent to the Mar-a-Lago Club, where
he had a personal residence. These documents had been generated by members of the intelligence
community and provided to Trump during his term in office, to facilitate the execution of his duties
as President of the United States. When those duties ended, so too did Trump’s authorization to
possess the documents. They were not keepsakes, memorabilia, or trophies for him to keep and
use as he pleased after his return to life as a private citizen. They contained sensitive, highly
classified information related to the national defense, and as such, the Espionage Act proscribed
their retention in an unsecure location by a private citizen who lacked authorization to possess
them. And because they were presidential records, they belonged to the American people, and
were to be preserved, retained, and safeguarded by the National Archives and Records
Administration (“NARA”), as required by the Presidential Records Act.
Trump nevertheless knowingly possessed and willfully retained the classified documents.
That alone distinguishes his conduct from a litany of former government officials who have
retained classified documents beyond their terms in office through inadvertence or carelessness,
but then returned them upon their discovery. But Trump’s conduct went much further. First, he
used delay and obfuscation to stymie NARA’s efforts to gain custody of the presidential records in
his possession. See ECF No. 85 ¶ 38. Then, when pressed by the threat of referral to Congress
and the Department of Justice, he ostensibly agreed to comply with NARA’s requests but in fact
engaged in deception, returning only a fraction of the documents in his possession while claiming
that his production was complete. Id. ¶¶ 38-48. When NARA discovered that his production
contained more than 100 documents with classification markings, it prudently alerted the
1
Page 4 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 4 of
appropriate government authorities. Id. ¶¶ 49-50. The government then opened a criminal
investigation, and a grand jury issued a subpoena to Trump for any remaining documents with
classification markings.
Id. ¶¶ 51-53.
Rather than simply comply with the subpoena, he
orchestrated a scheme to obstruct the criminal investigation and the continuing effort to recover
the documents. Among other things, the scheme included an effort to enlist his own attorney in
the corrupt endeavor, suggesting that the attorney 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. Id. ¶¶ 55-57, 66-67. Separately, Trump enlisted his trusted
body man, codefendant Waltine Nauta, in a scheme to deceive the attorney by moving boxes to
conceal his continued possession of classified documents. Id. ¶¶ 58-63. As a result, Trump,
through his attorney, again returned only a portion of the classified documents in his possession
while falsely claiming that his production was complete. Id. ¶¶ 64-73. In June 2022, knowing that
he had arranged for Nauta to move boxes to conceal them from Trump’s attorney, and knowing
that the government had subpoenaed the security video footage that would reveal that surreptitious
box movement, Trump, now joined by Nauta and codefendant Carlos De Oliveira, attempted to
have the IT manager at Mar-a-Lago delete the video footage. Id. ¶¶ 74-87.
Trump contends (Mot. to Dismiss based on Selective and Vindictive Pros. (“Mot.”))1 that
he has been subject to selective and vindictive prosecution. But he has not identified anyone who
has engaged in a remotely similar battery of criminal conduct and not been prosecuted as a result.
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 Attorney General appointed the Special Counsel to “underscore[] the Department’s

Trump’s motion has not yet been docketed publicly or received an ECF number.
2
Page 5 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 5 of
commitment to both independence and accountability in particularly sensitive matters” and to
allow prosecutors “to make decisions indisputably guided only by the facts and the law.” Att’y
Gen. Merrick B. Garland, Remarks on the Appointment of a Special Counsel (Nov. 18, 2022).The Special Counsel has followed the facts and the law, while adhering to all Department
regulations, including the prohibition on making a prosecutorial decision based on a defendant’s
“political association, activities, or beliefs,” or “for the purpose of giving an advantage or
disadvantage to any candidate or political party.” Justice Manual (“JM”) § 9-27.260. Trump fails
to show otherwise, and his requests for dismissal or discovery based on selective and vindictive
prosecution should be denied.
ARGUMENT
I.
Applicable LawThe decision to bring charges in a case is subject to a “presumption of regularity,” and,
with rare exceptions, defendants and courts are precluded from “[e]xamining the basis of a
prosecution” or “subjecting the prosecutor’s motives and decisionmaking to outside inquiry.”
United States v. Armstrong, 517 U.S. 456, 464-65 (1996); see Wayte v. United States, 470 U.S.
598, 607 (1985). Those rare exceptions include cases violating the constitutional prohibitions on
selective and vindictive prosecution. Selective prosecution occurs when the decision to prosecute
is “based on an unjustifiable standard such as race, religion, or other arbitrary classification.”
Armstrong, 517 U.S. at 464 (quotation marks omitted). And vindictive prosecution occurs when a
“charging decision” or other prosecutorial action is “motivated by a desire to punish [the

https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-deliversremarks-appointment-special-counsel.
The applicable law has been set forth at greater length at ECF No. 337 at 3-6.
3
Page 6 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 6 of
defendant] for doing something that the law plainly allowed him to do.” United States v. Goodwin,
457 U.S. 368, 384 (1982).
To prove a claim of selective or vindictive prosecution, a defendant must establish each of
the constituent elements (discussed below) by “clear and convincing evidence.” United States v.
Smith, 231 F.3d 800, 808 (11th Cir. 2000) (selective prosecution); see United States v. Simbaqueba
Bonilla, No. 07-cr-20897, 2010 WL 11627259, at *4-5 (S.D. Fla. May 20, 2010) (vindictive
prosecution). To obtain discovery on such a claim, a defendant must meet a “correspondingly
rigorous standard,” Armstrong, 517 U.S. at 468, that is “only slightly lower than for proving the
claim itself,” United States v. Hare, 820 F.3d 93, 99 (4th Cir. 2016) (quotation marks omitted); see
United States v. Bass, 536 U.S. 862 (2002) (per curiam). That standard requires the defendant to
make “a credible showing” to support his claim, by providing “some evidence tending to show the
existence of the essential elements of the defense.” Armstrong, 517 U.S. at 468, 470 (quotation
marks omitted); see United States v. Cannon, 987 F.3d 924, 937 (11th Cir. 2021).
A.
Requirements of a Selective Prosecution Claim
A selective prosecution claim has two prongs, requiring a defendant to “demonstrate [1]
that the federal prosecutorial policy had a discriminatory effect and [2] that it was motivated by a
discriminatory purpose.” Smith, 231 F.3d at 808 (quotation marks omitted). The first prong
requires a showing that “similarly situated individuals were not prosecuted,” which means the
defendant must identify a “comparator [who] committed the same basic crime in substantially the
same manner as the defendant—so that any prosecution of that individual would have the same
deterrence value and would be related in the same way to the Government’s enforcement priorities
and enforcement plan—and against whom the evidence was as strong or stronger than that against
the defendant.” Id. at 809-10. The second prong requires a showing that the prosecutorial decision
4
Page 7 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 7 of
was in fact “motivated by a discriminatory purpose” on behalf of “the decisionmaker,” United
States v. Jordan, 635 F.3d 1181, 1188 (11th Cir. 2011) (quotation marks omitted).
B.
Requirements of a Vindictive Prosecution Claim
A vindictive prosecution claim based (as here) on a theory of actual vindictiveness requires
the defendant to demonstrate “that (1) the prosecutor acted with genuine animus toward the
defendant and (2) the defendant would not have been prosecuted but for that animus.” United
States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001); see United States v. Barner, 441 F.3d 1310,
1322 (11th Cir. 2006) (citing Wilson and stating that the “elements of prosecutorial vindictiveness
are animus plus causation”).
II.
Trump Fails to Satisfy the First Prong of a Selective Prosecution Claim Because He
Cannot Identify a Similarly Situated Comparator
To satisfy the first prong of his selective prosecution claim, Trump offers (Mot. at 2-13)
nine individuals who he contends are similarly situated. But while each of them, to varying
degrees, bears a slight resemblance to this case, insofar as they involved the mishandling of
classified documents, none is alleged to have willfully retained a vast trove of highly sensitive,
confidential materials and repeatedly sought to thwart their lawful return and engaged in a multifaceted scheme of deception and obstruction—a scheme that included not only Trump’s own
repeated efforts to stymie the investigation, but his recruitment and direction of his subordinates
to join in the conspiracy. See Smith, 231 F.3d at 811. There is no one who is similarly situated.
A.
Joseph R. Biden
Trump first contends (Mot. at 2-5, 21) that his conduct, as alleged in the Superseding
Indictment, is not meaningfully distinguishable from the conduct of Joseph R. Biden, as described
in the Report on the Investigation Into Unauthorized Removal, Retention, and Disclosure of
Classified Documents Discovered at Locations Including the Penn Biden Center and the Delaware
5
Page 8 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 8 of
Private Residence of President Joseph R. Biden, Jr., by Special Counsel Robert K. Hur (“Hur
Report”), such that he and Biden should be viewed as similarly situated comparators. That claim
fails. To be sure, there are superficial similarities between the two cases: both, for example,
involve classified materials received by a Vice President or President during his term of office and
then stored in cardboard boxes in an unsecured location thereafter, which “poses serious risks to
national security.” Hur Report at 255; see id. at 180 (noting that, absent “a written waiver of the
need-to-know requirement” or other “findings required by [Executive Order 13526],” the
“possession of [classified] materials in unsecured spaces” is “unauthorized within the meaning of
the Espionage Act”).
Both also involve a recording capturing the discussion of classified
information with a ghostwriter. Compare ECF No. 85 ¶¶ 34-35 with Hur Report at 9-10.
But as the Hur Report recognizes, “several material distinctions between Mr. Trump’s case
and Mr. Biden’s are clear.” Hur Report at 11; id. at 250. Two are particularly salient. First, 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, which provides particularly strong
evidence of willfulness and is a paradigmatic aggravating factor that prosecutors routinely rely on
when making charging decisions. This distinction precludes Trump from showing that the two
men “committed the same basic crime in substantially the same manner.” Smith, 231 F.3d at 810.
Second, the evidence concerning the two men’s intent—whether they knowingly possessed and
willfully retained such documents—is 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 Report at 204 (capitalization altered),
which precludes Trump from showing that the evidence against Biden is “as strong or stronger
than that against” Trump, Smith, 231 F.3d at 810. Additional distinctions—relating to the volume,
6
Page 9 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 9 of
sensitivity, and storage of the classified documents—further confirm that the two cases are not
“nearly identical” and that there are “legitimate reasons for viewing them differently.” United
States v. Brantley, 803 F.3d 1265, 1272 (11th Cir. 2015).
Obstructive conduct. The investigation into Trump’s retention of classified documents
began in February 2022, following a protracted period in which he repeatedly resisted NARA’s
efforts to gain custody over presidential records in his possession, and then returned only a subset
of those records—a subset that contained 197 documents bearing classification markings. ECF
No. 85 ¶¶ 7-8. A federal grand jury issued a subpoena requiring Trump to turn over all documents
in his custody or control with classification markings. Id. ¶¶ 7, 53.
In response, Trump
“endeavored to obstruct the FBI and grand jury investigations and conceal his continued retention
of classified documents” in numerous ways. Id. ¶ 7. First, Trump “suggest[ed] that his attorney
falsely represent to the FBI and grand jury that Trump did not have documents called for by the
grand jury subpoena.” Id. Second, Trump “direct[ed] defendant Waltine Nauta to move boxes of
documents to conceal them from Trump’s attorney, the FBI, and the grand jury.” Id. Third, Trump
“suggest[ed] that his attorney hide or destroy documents called for by the grand jury subpoena.”
Id. Fourth, Trump “provid[ed] to the FBI and grand jury just some of the documents called for by
the grand jury subpoena, while claiming that he was cooperating fully.” Id. Fifth, Trump “caus[ed]
a certification to be submitted to the FBI and grand jury falsely representing that all documents
called for by the grand jury subpoena had been produced—while knowing that, in fact, not all such
documents had been produced.” Id. And sixth, Trump “attempt[ed] to delete security footage at
The Mar-a-Lago Club to conceal information from the FBI and grand jury.” Id.
These repeated and flagrant obstructive efforts find no analogue in the facts detailed in the
Hur Report. To the contrary, the Hur Report found that “Biden alerted authorities, turned in
7
Page 10 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 10 of
classified documents to the National Archives and the Department of Justice in 2022 and 2023,
consented to the search of multiple locations including in his homes, permitted the seizure and
review of handwritten notebooks he believed to be his personal property, and in numerous other
ways cooperated with the investigation.” Hur Report at 250.
This key factual distinction—between defiance, deception, and obstruction, on the one
hand, and cooperation, on the other—precludes Trump from showing that he and Biden
“committed the same basic crime in substantially the same manner.” Smith, 231 F.3d at 810; see
United States v. Sun Myung Moon, 718 F.2d 1210, 1230 (2d Cir. 1983) (rejecting selective
prosecution claim where, unlike the purported comparators, “this case also involved charges of
perjury and obstruction of justice”). Indeed, by retaining a large quantity of highly sensitive
materials and refusing to return them and taking affirmative steps to obstruct the investigation,
Trump “in effect selected [himself] for prosecution.” Wayte, 470 U.S. at 610 (“[T]hose prosecuted
in effect selected themselves for prosecution by refusing to register [for the Selective Service] after
being reported and warned by the Government.”); see also United States v. Heilman, 614 F.2d
1133, 1138 (7th Cir. 1980) (“‘Aggressively displaying one’s antipathy to the . . . system or daring
the government to enforce it does not create immunity from, or a defense to, prosecution.’”
(quoting United States v. Stout, 601 F.2d 325, 328 (7th Cir. 1979) (ellipsis in Heilman)).
Evidence of intent. In cases involving the unauthorized possession of documents and other
material “relating to the national defense,” the key investigative question is often whether the
person “willfully retain[ed]” those sensitive materials. 18 U.S.C. § 793(e). That crucial question
of intent is typically what “‘separate[s] wrongful from innocent acts.’” Ruan v. United States, U.S. 450, 458 (2022) (quoting Rehaif v. United States, 139 S. Ct. 2191, 2197 (2019)).
8
Page 11 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 11 of
The investigation into Trump’s conduct uncovered powerful evidence that he willfully
retained the documents charged in the indictment. Although much of that evidence must await
trial, the Superseding Indictment alleges that Trump knew the contents of his boxes, having
personally collected the materials in them during his Presidency and been “personally involved”
in the process of packing them up at the end of his term in office and causing them to be transported
to Mar-a-Lago.4 ECF No. 85 ¶¶ 25-27, 29, 31. It further alleges that Trump, on two occasions
after his Presidency, showed classified documents to individuals lacking security clearances while
commenting on the classified status of the items. Id. ¶¶ 35-36. Moreover, Trump had reviewed
the contents of the 15 boxes containing classified documents that he returned to NARA and knew
that he was returning only a small portion of the documents in his possession. Id. ¶¶ 38-49. The
evidence of obstruction, described above, also provides powerful evidence of willful retention,
given that Trump engaged in deceptive and obstructive conduct precisely so that he could retain
the classified documents that the grand jury had demanded. After considering this evidence,
consistent with the Principles of Federal Prosecution, the Government concluded it could prove
Trump’s criminal intent beyond a reasonable doubt at trial. See JM § 9-27.220.
The Hur Report found the opposite as to Biden. After an “extensive investigation”
involving “173 interviews of 147 witness, including Mr. Biden himself,” plus the collection of

Trump has since provided additional evidence of his knowing possession and willful
retention, publicly claiming that he took the documents with him “openly and transparently,”
https://truthsocial.com/@realDonaldTrump/posts/109423467465734907, and that he was
“RIGHT” to do so, because he made sure to keep “[s]ecured documents in a secured place,”
https://truthsocial.com/@realDonaldTrump/posts/109686940059084385, thereby confirming that
he knew that he had these documents and made the considered decision to retain them. He has
separately made the unsupported claim that, before leaving office, he decided to declassify the
documents “by thinking about [them].” https://www.foxnews.com/transcript/hannity-donaldtrump-ny-ag-lawsuit-mar-lago-raid; see also https://truthsocial.com/@realDonaldTrump/posts/
108917523934541907 (“Lucky I Declassified!”). If he persists in these declassification claims,
that, too, would provide additional evidence that he knowingly possessed the documents.
9
Page 12 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 12 of
“over seven million documents,” Hur Report at 28-29, it concluded that “the evidence does not
establish Mr. Biden’s guilt beyond a reasonable doubt,” id. at 1. Trump mischaracterizes its
findings by claiming that “Mr. Hur found that President Biden acted ‘willfully.’” Mot. at 21. In
fact, the Hur Report found that, while “[t]here is evidence that Mr. Biden willfully retained the
classified Afghanistan documents,” Hur Report at 201 (capitalization omitted), “[t]he evidence
falls short of establishing Mr. Biden’s willful retention of the classified Afghanistan documents
beyond a reasonable doubt,” id. at 204 (capitalization omitted), given the existence of “at least
three defenses likely to create reasonable doubt as to such charges,” id. at 204, which are each
discussed at length, id. at 204-222. See also id. at 250 (“Unlike the evidence involving Mr. Biden,
the allegations set forth in the indictment of Mr. Trump, if proven, would clearly establish not only
Mr. Trump’s willfulness but also serious aggravating facts.”). Trump may dispute the Hur Report’s
conclusions, but he should not be allowed to misrepresent them. The clear differential in the
strength of the evidence on the crucial element of intent precludes Trump from showing that the
two men are similarly situated. Smith, 231 F.3d at 811.
Other relevant distinctions. Other distinctions—relating to the volume, sensitivity, and
storage of the classified documents—confirm that conclusion. “‘[I]n determining whether persons
are similarly situated for equal protection purposes, a court must examine all relevant factors.’”
United States v. Venable, 666 F.3d 893, 901 (4th Cir. 2012) (quoting United States v. Olvis, 97 F.3d
739, 744 (4th Cir. 1996)); see United States v. Lewis, 517 F.3d 20, 27 (1st Cir. 2008). That
examination “is not to be conducted in a mechanistic fashion,” since “‘[m]aking decisions based
on the myriad of potentially relevant factors and their permutations require[s] the very professional
judgment that is conferred upon and expected from prosecutors in discharging their
responsibilities.’” Venable, 666 F.3d at 901 (quoting Olvis, 97 F.3d at 744).
10
Page 13 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 13 of
With regard to volume, for example, the Hur Report found that Biden possessed documents bearing classification markings, including 18 marked Top Secret. See Hur Report at
Appendix A. By contrast, Trump possessed 337 documents bearing classification markings,
including 64 marked Top Secret. See ECF No. 85 ¶¶ 49, 65, 90.
The Hur Report also noted that the documents for which charges were most plausible were
all “now almost fifteen years old” and involved a single, completed conflict. Hur Report at 219;
see id. at 253. By contrast, Trump possessed an array of sensitive documents that were presented
to him during his term as President between 2017 and 2021, and they “included information
regarding defense and weapons capabilities of both the United States and foreign countries; United
States nuclear programs; potential vulnerabilities of the United States and its allies to military
attack; and plans for possible retaliation in response to a foreign attack.” ECF No. 85 ¶ 3.
Finally, the Hur Report notes that the documents for which charges were most plausible
“were found in a box in Mr. Biden’s Delaware garage.” Hur Report at 3. That was plainly an
unsecured location, see id. at 180, and the storage of classified documents there “risked serious
damage to America’s national security,” id. at 200. Whatever risks are posed by storing documents
in a private garage, however, are dwarfed by the risks of storing documents at “an active social
club” with “hundreds of members” and “more than 150 full-time, part-time, and temporary
employees,” which, between January 2021 and August 2022, “hosted more than 150 social events,
including weddings, movie premieres, and fundraisers that together drew tens of thousands of
guests.” ECF No. 85 ¶¶ 5, 11-12. Those risks are not mitigated by the presence of Secret Service
agents, who were “not responsible for the protection of Trump’s boxes or their contents,” and did
not even know that Trump “was storing boxes containing classified documents” there. Id. ¶ 13;
accord Hur Report at 241 n.930 (“It is not clear that the presence of Secret Service agents
11
Page 14 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 14 of
materially enhances the level of protection afforded to classified materials. Agents we interviewed
said they focus on the protection of persons, not documents, and they do not monitor the movement
of or access to documents.”).
Particularly when considered in the aggregate, 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.” Brantley, 803 F.3d at 1272; see Smith, 231 F.3d at 812 (“The
government can legitimately place a higher priority on prosecuting someone who commits an
offense three, six or seven times, than someone who commits an offense once or twice . . . .”).
In sum, 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. His request
for dismissal or discovery on these grounds therefore fails at step one.B.
Mike Pence
Trump next suggests (Mot. at 5-6, 22) that former Vice President Mike Pence engaged in
conduct that was materially indistinguishable from that alleged in this case. According to publicly
available information about Pence, the relevant facts do not remotely resemble the allegations
against Trump. On January 16, 2023, and in the wake of press reports that classified documents
had been found in President Biden’s personal residence, Pence, acting “out of an abundance of
caution,” hired attorneys “with experience in handling classified documents” to search his personal

The existence of the Hur Report also makes Trump’s reliance on Biden as a basis for
discovery particularly misplaced. This is not a case in which a defendant points to the absence of
charges against a similarly situated comparator and asks the court to permit discovery to explore
whether the disparate treatment was grounded in an improper purpose. Instead, this is a case in
which an exhaustive report details precisely why the purported comparator was not prosecuted,
foreclosing the need to discover the basis for that decision.
12
Page 15 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 15 of
home. Letter from Greg Jacob to NARA (Jan. 18, 2023).6 After those attorneys found “a small
number of documents that could contain sensitive or classified information,” Pence “immediately
secured those documents in a locked safe” and “directed” that his representatives collaborate with
NARA to “ensure their prompt and secure return.” Id. The FBI retrieved the documents on January
19, 2023, the day after Pence’s representative alerted NARA. Letter from Greg Jacob to NARA
(Jan. 22, 2023).
“[R]oughly 12 classified documents” were found by Pence’s attorneys,
“includ[ing] materials described as background briefing memos that were prepared for Pence’s
foreign trips,” and for which the classification markings were reportedly “on the ‘lower level.’”Four days later, Pence’s representative “personally deliver[ed]” to NARA four boxes found in
Pence’s home that appeared to contain materials from Pence’s Vice Presidency. Letter from Greg
Jacob to NARA (Jan. 22, 2023). Pence also agreed to an FBI search of his home, which took place
on February 10, 2023, and uncovered one “document with classified markings” and “six additional
pages without such markings” (quotation marks omitted).9 On June 1, 2023, the Department of
Justice notified Pence that it would not pursue criminal charges in connection with the discovery
of the classified documents.Those facts bear no salient similarities to the allegations against Trump. Acting on his own
initiative to identify any improper retention of official records, Pence retained counsel specially

https://www.archives.gov/files/foia/greg-jacob.01-18-2023-ltr-to-archives.re-pence-prarecords.pdf.
https://www.archives.gov/files/foia/greg-jacob.01-22-2023-ltr-to-archives-re-pence-prarecords.pdf.
https://www.cnn.com/2023/01/25/politics/pence-classified-documents-briefing-memosforeign-trips/index.html.
https://www.cnn.com/2023/02/10/politics/mike-pence-house-fbi-search/index.html.
https://www.pbs.org/newshour/politics/justice-department-wont-bring-charges-overclassified-documents-found-at-pences-hom

13
Page 16 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 16 of
trained in the handling of classified materials to search his property; secured classified documents
once they were found; promptly alerted NARA about the discovery and directed his representatives
to work with NARA to return the documents; arranged for his representative to promptly return
four boxes of records; and consented to a search of his personal home less than a month after his
initial discovery of classified materials. Apparently fewer than 15 documents bearing classified
markings were found, and the majority (if not all) of those appear not to have carried a high level
of classification. Pence is therefore not similarly situated to Trump. See Smith, 231 F.3d at 809.
C.
Bill Clinton
Trump next names (Mot. at 6-7, 22-23) former President Bill Clinton as another alleged
comparator for his selective prosecution claim. As discussed in the Government’s response (ECF
No. 373 at 14-16) to Trump’s motion to dismiss based on the Presidential Records Act, Clinton
“enlisted historian Taylor Branch to assist him in creating ‘an oral history of his eight years in
office.’” Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 290 (D.D.C. 2012). Clinton intended
that project to be an oral “diary.” See Taylor Branch, The Clinton Tapes: Wrestling History with
the President 36 (Simon & Schuster 2009) 1, 36. And when Judicial Watch sought access to the
resulting tapes years after Clinton’s presidency ended, NARA responded by noting in part that it
did not have custody of the tapes and did not believe that they fell “‘within the ambit of the PRA,’”
after considering “‘the nature of the audio tapes, if they were created with the intent of their use as
government materials, and whether or not they were circulated within the Administration or relied
on as policy documents.’” Judicial Watch, 845 F. Supp. 2d at 293; see 44 U.S.C. § 2201(3)(A)
(defining “personal records” to include “diaries, journals or other personal notes serving as the
functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or
communicated in the course of, transacting Government business”). The district court dismissed
14
Page 17 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 17 of
Judicial Watch’s suit, brought under the Administrative Procedure Act, concluding that even if it
agreed with Judicial Watch’s “questionable characterization” of the recordings as presidential
records, the court did not have the authority to compel NARA to exercise its discretion under the
PRA to commence proceedings to recover the records. 845 F. Supp. 2d at 302.
Trump speculates (Mot. at 6-7) that, because the tapes “captured a verbatim record of
President Clinton being President,” including by discussing foreign policy, see id. at 290 & n.1,
they may have contained information “relating to the national defense,” within the meaning of
Section 793(e). But Clinton’s taped diaries are far different from the reams of highly classified
documents that Trump is charged with retaining, and there is no suggestion that Clinton engaged
in similar obstructive acts. He is not a similarly situated comparator.
D.
Hillary Clinton
Trump next suggests (Mot. at 7-10) that Former Secretary of State Hillary Clinton is a
similarly situated comparator for purposes of his selective prosecution motion. As detailed in a
June 2018 Report by the DOJ Office of the Inspector General (DOJ-OIG), Clinton, while serving
as Secretary of State, “used private email servers . . . to conduct official State Department
business.” DOJ-OIG, A Review of Various Actions by the Federal Bureau of Investigation and
Department of Justice in Advance of the 2016 Election (June 2018) (“DOJ-OIG Review”), at 37.
After receiving a referral from the Intelligence Community Inspector General, the FBI opened a
criminal investigation to “determine the extent of classified information on former Secretary
Clinton’s private server, who was responsible for introducing the information into an unclassified
system, and why it was placed there.” Id. at 40.
In his 2016 campaign, Trump called for charges to be brought against Clinton for this
conduct, emphasizing that “We can’t have someone in the Oval Office who doesn’t understand the
15
Page 18 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 18 of
After reviewing the evidence uncovered in the investigation, “prosecutors analyzed the
conduct of former Secretary Clinton . . . under five statutes,” including 18 U.S.C. §§ 793(d), (e),
and (f), but “concluded that there was not a basis to prosecute former Secretary Clinton, her senior
aides, or others under any of these statutes.” Id. at 254. That conclusion followed from several
“critical” findings, including that “[n]one of the emails contained clear classification markings”;
“[o]nly three email chains contained any classification markings of any kind,” and somewhat
ambiguous ones at that; “[t]here was no evidence that . . . former Secretary Clinton believed or
[was] aware at the time that the emails contained classified information”; “[t]he emails in question
were sent to other government officials” and there was no evidence “that any individual ever
contemporaneously conveyed” concerns about her email practices to her; and “[t]here was no
evidence that Clinton . . . had knowledge that classified information would be communicated or
retained on” her private servers or email account. Id. at 255.
Agents and prosecutors also investigated the deletion of 31,830 emails that Clinton’s
attorneys had not produced to the State Department, deeming them “personal in nature.” Id. at 72.
After producing the work-related emails to the State Department, Clinton’s attorneys asked an
employee of “the company that managed Clinton’s server [] to remove the emails from their own
laptops and modify the server’s email retention period so that emails older than 60 days would not
be retained.” Id. The employee used a commercially available program called BleachBit to
remove Clinton’s emails from the attorneys’ laptops, but he initially neglected to change the
server’s email retention policy. Id. at 78-79. The employee “realized his mistake in March 2015,”
after learning of a congressional subpoena for the unproduced emails. Id. At that point, “he ‘had
meaning of the word confidential or classified,” and promising, “In my administration I’m going
to enforce all laws concerning the protection of classified information. No one will be above the
law.” ECF No. 85 ¶ 23.
16
Page 19 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 19 of
an “oh shit” moment’ and wiped” the archived emails from the company’s server using BleachBit,
although the FBI was later able to recover some of the deleted emails. Id. The employee spoke to
investigators and prosecutors under an immunity agreement and explained that he had deleted the
emails of his own volition without being directed by (or even informing) Clinton or her attorneys.
Id. at 107. “In sum, [the employee] took responsibility for the deletions, without implicating
Clinton or her attorneys,” and the investigators and prosecutors who attended his interview found
his statements to be credible. Id.
In short, Clinton did not “commit[] the same basic crime in substantially the same manner”
as Trump, Smith, 231 F.3d at 810, and the evidence against her was not “as strong or stronger than
that against” Trump, id. at 811. He cannot show that she is a similarly situated comparator.E.
James Comey
Trump next invokes (Mot. at 10-11, 23) former FBI Director James Comey as a putatively
similarly situated comparator. According to the DOJ-OIG, Comey, while serving as the FBI
Director, authored seven memoranda addressing separate interactions with Trump between
January and April 2017, when Trump was President-Elect or President. DOJ-OIG, Report of
Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of
Sensitive Investigative Information and Handling of Certain Memoranda 1 (August 2019). Comey
believed that two of the memos (Memo 1 and Memo 3) contained classified information, and he

As with the Hur Report, see supra n.1, the existence of the DOJ-OIG Review makes
Trump’s reliance on Hillary Clinton as a comparator a particularly poor basis for seeking discovery.
The DOJ-OIG Review “analyzed the Department’s decision to decline to prosecute former
Secretary Clinton . . . to determine whether the declination decision was based on improper
considerations, including political bias.” DOJ-OIG Review at 260-61. In doing so, DOJ-OIG
“found that the prosecutors’ decision was based on their assessment of the facts, the law, and past
Department practice,” and it “did not identify evidence of bias or improper considerations.” Id.
As such, there is no basis for Trump to request discovery to determine whether the different
prosecutorial decisions were grounded in bias or improper considerations.
17
Page 20 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 20 of
treated them accordingly. Id. at 17-19, 22-23. He took four other memos (Memos 2, 4, 6, 7) home
with him, believing that they contained no classified information, id. at 28, and that they
constituted “personal documents” similar to a diary or a “personal aide-mémoire” because they
contained his recollection of meetings with Trump. Id. at 52. Shortly after Trump removed Comey
as FBI Director on May 9, 2017, Comey shared these four memos with his personal attorney. Id.
at 37. Comey also sent to a friend a copy of Memo 4, which documented a conversation in which
Trump said that “he ‘hope[d]’ Comey could ‘see [his] way clear to letting’” National Security
Advisor Mike Flynn “‘go,’” which Comey understood to be an attempt by Trump to “request[] that
[the FBI] drop any investigation of Flynn in connection with false statements about his
conversations with the Russian ambassador in December.’” Id. at 24. Following a classification
review that determined that portions of four of the memos (Memos 1, 2, 3, and 7) contained
information classified as secret or confidential, id. at 1, 10-12, Comey and the attorney returned
the memoranda to the FBI, id. at 48-51. Those facts do not include the type of allegedly obstructive
behavior, culpable mental state, or volume of highly sensitive documents at issue here.
F.
David Petraeus
Trump next offers (Mot. at 11, 23) former Army four-star general and CIA Director David
Petraeus as a comparator. While in Afghanistan, Petraeus “maintained bound, five-by-eight-inch
notebooks that contained his daily schedule and classified and unclassified notes he took during
official meetings, conferences, and briefings.” Def. Ex. 8 at 9. Petraeus later allowed his
biographer to review these notebooks, which “contained national defense information, including
Top Secret//SCI and code word information.” Id. at 9-11. After he resigned as CIA director, “the
FBI executed a court-authorized search warrant at” Petraeus’s home and seized the notebooks. Id.
at 12. Petraeus later falsely denied that he had provided classified information to his biographer
18
Page 21 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 21 of
or allowed her to review his notebooks. Id. at 13. The government advised Petraeus that they
were considering felony charges against him, but he ultimately pleaded guilty to an information
charging him with violating 18 U.S.C. § 1924. Id.; see Adam Goldman, How David Petraeus
Avoided Felony Charges and Possible Prison Time, Wash. Post (Jan. 25, 2016).There are many distinctions between Petraeus’s notebook possession and Trump’s conduct,
which involves the willful possession of hundreds of classified documents and a multi-faceted
scheme to obstruct justice, involving a false certification to the grand jury and attempts to destroy
evidence. And far from supporting Trump’s selective prosecution claim, the Petraeus example
shows that the Department of Justice has previously found it appropriate to investigate (including
through the use of search warrants), prosecute, and consider felony charges against, high-ranking
government officials who improperly retain or disclose classified information.
G.
Samuel “Sandy” Berger
Trump next lists (Mot. at 12, 23) former National Security Advisor Sandy Berger as a
similarly situated comparator. In 2003, Berger visited NARA’s office to review presidential
records from the Clinton administration. Def. Ex. 9 at 1-2. Over the course of two visits, Berger
removed five “copies of versions of the same [classified] document,” storing them at his office,
“which he knew was a location that was not authorized for the storage of classified documents,”
and later shredding and discarding three of the copies. Id. When NARA first approached him,
Berger “initially . . . did not tell NARA that he had taken the documents.” Id. Later that night,
however, Berger “told NARA that he had accidentally misfiled the documents and had found two.”
Id. The next day, Berger returned the two documents that had not been destroyed. Id. For this

Section 1924 was a misdemeanor offense until January 19, 2018, when then-President
Trump signed into law Pub. L. 115-118, Title II, § 202, which increased the maximum penalty
from one year to five years. 132 Stat. 19.
19
Page 22 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 22 of
conduct, Berger pleaded guilty to an information charging him with violating 18 U.S.C. § 1924.
Id. Berger’s conduct was vastly less egregious than Trump’s, and the fact that it resulted in criminal
charges (resolved via guilty plea) undercuts his claim of selective prosecution.
H.
John Deutch
Trump next relies (Mot. at 12-13, 23) on the example of former CIA director John Deutch,
who used unclassified computers to process his journal, which contained classified information,
resulting in investigations by the Inspectors General of the CIA and the Department of Defense.
Def Exs. 10, 11. Although this conduct “was extremely risky in that a computer ‘hacker’ could
have gained on-line access to Dr. Deutch’s computer,” Def. Ex. 11 at 2, a forensic examination
found “‘no clear evidence’ that a compromise had occurred,” Def. Ex. 10 at 33. Deutch reportedly
had agreed to plead guilty to violating 18 U.S.C. § 1924, but he received a presidential pardon
before the plea was entered. See Bill Miller & Walter Pincus, Deutch Had Signed Plea Agreement,
Sources Say, Wash. Post (Jan. 23, 2001). Trump’s willful retention of hundreds of classified
documents and his obstruction of justice plainly distinguish his conduct from Deutch’s. And again,
the fact that prosecutors were prepared to obtain a criminal conviction against a high-ranking
government official for conduct vastly less egregious than Trump’s belies his narrative that there
is something suspicious or improper about the charges here.
I.
Deborah Birx
Finally, Trump relies (Mot. at 13) on documents produced in discovery to speculate that
Deborah Birx, who served as the White House Coronavirus Response Coordinator during Trump’s
administration, could be a similarly situated comparator. But those documents merely note that
NARA retrieved “PRA materials from Dr. Birx,” Def. Ex. 12, and then “found a classified
document in the mix” while scanning those materials, Def. Ex. 13. There is no indication that Birx
20
Page 23 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 23 of
even knew that she possessed the classified document she returned to NARA, much less that she
ever willfully retained it, thwarted NARA’s efforts to collect it, or attempted to obstruct justice.
* * *
In sum, Trump has failed to identify any person who qualifies as a similarly situated
comparator. His request for discovery or dismissal on the basis of selective prosecution can and
should be denied on this basis alone. See Cannon, 987 F.3d at 939.
III.
Trump Fails to Satisfy the Second Prong of a Selective Prosecution Claim or Show
Actual Vindictiveness
To both satisfy the second prong of his selective prosecution claim and establish a claim of
actual vindictiveness, Trump relies on a newspaper article and a series of public statements. In his
view, these materials show, “[w]ith respect to selective prosecution,” that “this case has been
brought based on impermissible considerations relating to President Trump’s candidacy and First
Amendment-protected speech relating to his campaign.” Mot. at 16. They likewise show, he
insists, that “[t]he prosecution is ‘vindictive’ because it has been brought in an effort to punish
President Trump for exercising those rights on behalf of the American people.” Id. The materials
on which he relies show no such thing.
Notably, Trump does not contend that the Special Counsel himself was motivated by
improper considerations, which would normally be fatal to his claims, as they require a showing
of improper purpose on behalf of the prosecutorial decisionmaker, see Jordan, 635 F.3d at 1188.
To avoid this problem, Trump sketches out a theory in which the Special Counsel “‘was prevailed
upon to bring the charges by another”—evidently referring to Biden—“with animus such that the
prosecutor could be considered a ‘stalking horse.’” Mot. at 18 (quoting United States v. Sanders,
211 F.3d 711, 717 (2d Cir. 2000)); see ECF No. 300 at 5 (referring to “the Biden Administration’s
21
Page 24 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 24 of
use of [the Special Counsel] as a puppet”). That conspiratorial narrative of bias and abuse has no
basis in evidence, let alone the sort of clear, objective evidence required here.
Trump’s “stalking horse” theory apparently rests on the following “evidence.” First, “[i]n
April 2022, the Biden Administration leaked to the New York Times President Biden’s view that
President Trump ‘should be prosecuted’ and his instruction that Attorney General Garland should
‘take decisive action.’” Mot. at 17 (quoting ECF No. 262-1 at Def. Ex. 62). Then, in September
2022, following the execution of the search warrant at Mar-a-Lago, Biden “characterized the
circumstances” surrounding Trump’s possession of classified documents “as ‘totally
irresponsible,’ ask[ing] ‘[h]ow that could possibly happen[?],’ and express[ing] concern about
‘[w]hat data was in there that may compromise sources and methods?’” Id. at 17-18 (citing Hur
Report at 7). Then, seven months later, Biden, in remarks that (according to Trump) “were plainly
timed based on rumors of President Trump’s candidacy,” “declared . . . that he was ‘making sure’
President Trump ‘will not take power’ and ‘does not become the next President again.’” Id. at 18.
In sum, Trump appears to contend that it was President Biden who actually made the
decision to seek the charges in this case; that Biden did so solely for unconstitutional reasons; and
that this decision was somehow foisted on the Special Counsel through a newspaper article, a press
conference, and an interview that each preceded the Special Counsel’s appointment. That theory
finds no support in evidence or logic. Indeed, the very sources Trump relies on undercut his claim.
The April 2022 newspaper article, for example, is unrelated to this case, and discusses
prosecutions arising out of the January 6, 2021 assault on the Capitol. But even if taken at face
value, the article undermines any claim that Biden was involved in investigative and prosecutorial
decisions. The article emphasizes that the Attorney General “and the career prosecutors working
on the case felt only the pressure ‘to do the right thing,’ which meant that they ‘follow the facts
22
Page 25 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 25 of
and the law wherever they may lead’”; that “Justice Department officials do not keep Mr. Biden
abreast of any investigation”; that Biden and the Attorney General “have less contact than some
previous presidents and attorneys general, particularly Mr. Trump and his last attorney general,
William P. Barr”; that Biden “came to his job as president with a classical, post-Watergate view of
the department—that it was not there to be a political appendage”; and that when Biden had
previously stated publicly that other defendants should be prosecuted, the Department had
responded by noting that it “‘will make its own independent decisions in all prosecutions based
solely on the facts and the law. Period. Full stop.’” ECF No. 262-1 at Def. Ex. 62. The article
undermines the claim that Biden used the press to direct a not-yet-appointed Special Counsel to
seek an indictment approximately a year later based in part on events that had not yet occurred.
Trump’s contention (Mot. at 17-18) that Biden sought to influence the course of this
investigation through comments made during a September 2022 interview is likewise unavailing.
In that interview, Biden was asked about his reaction to seeing a public photograph from the search
of Mar-a-Lago in August 2022.14 After describing his reaction, Biden explained that he had not
been briefed on the documents “found at Mar-a-Lago”; that he had not been notified “ahead of
time” of the execution of the search warrant; and that he had “not asked for the specifics of those
documents because I don’t want to get myself in the middle of whether or not the Justice
Department should move or not move on certain actions they could take,” since “I agreed I would
not tell them what to do and not, in fact, engage in telling them how to prosecute or not.” Id.
Those statements again undermine Trump’s baseless claim that Biden has directed the
prosecutorial decisionmaking in this case.

https://www.cbsnews.com/news/president-joe-biden-60-minutes-interview-transcript2022-09-18/.
23
Page 26 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 26 of
The same is true of the November 2022 press conference upon which Trump relies. Mot.
at 18. There, Biden described discussions at a G7 summit in which foreign leaders had expressed
concerns, in light of the events of January 6, 2021 whether the United States was a “stable”
democracy where “rules and the institutions matter.”15 A reporter asked Biden how he would
“reassure” allies that Trump would not “once again take power in the United States,” and he
responded, “Well, we just have to demonstrate that he will not take power by—if we—if he does
run. I’m making sure he, under legitimate efforts of our Constitution, does not become the next
President again.” Id. No fair reading of that exchange could construe it as evidence that Biden
was directing the Special Counsel (who had still not yet been appointed) to bring charges in this
case, or any other case, let alone that the Special Counsel sought an indictment as a result.
Trump’s effort (Mot. at 18) to find impropriety in a recent interview by the Attorney
General likewise fails. There, the Attorney General emphasized that the Department of Justice
“follows the facts and the law wherever they lead”; that “politics is not a part of our determination,
since it would be improper”; and that the Department has followed the regulations providing
prosecutorial independence to the Special Counsels he had appointed.16 When asked whether “the
federal cases against Trump should have been brought sooner,” he responded, “The prosecutor has
urged speedy trials, with which I agree,” and it is “now in the hands of the judicial system.” Id.
In sum, Trump has not presented evidence substantiating his “stalking horse” theory and
has fallen woefully short of the requirements for supporting a finding of discriminatory purpose.
He presents no evidence whatsoever tending to show that Biden’s comments about him had any

https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/11/09/remarks-bypresident-biden-in-press-conference-8/.
See video at https://www.cnn.com/2024/01/19/politics/merrick-garland-trump-speedytrial/index.html.
24
Page 27 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 27 of
bearing on the Special Counsel’s decision to seek charges, much less that the Special Counsel is a
“stalking horse.” See United States v. Avenatti, 433 F. Supp. 3d 552, 574-75 (S.D.N.Y. 2020)
(“Acknowledging the animosity between Avenatti and President Trump, Avenatti has not proffered
evidence suggesting that this prosecution was initiated at President Trump’s behest . . . .”). Indeed,
the evidence that he has presented undercuts his claims, as it repeatedly emphasizes that the
prosecutorial decisions made by the Department generally—and the Special Counsel
specifically—have been made on the basis of the facts and the law. The Attorney General
appointed the Special Counsel to ensure prosecutorial independence. The Special Counsel and the
career prosecutors in his Office have faithfully carried out their duties in this case, and the
indictment is the result of a thorough and impartial investigation guided by the facts and law.
CONCLUSION
Trump has failed to make a showing sufficient to entitle him even to discovery, much less
dismissal, on his claims of selective and vindictive prosecution. His motion should be denied.
Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A950 Pennsylvania Avenue, N.W.
Washington, D.C.
25
Page 28 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 28 of
David V. Harbach, II
Assistant Special Counsel
Special Bar ID #AJohn M. Pellettieri
Assistant Special Counsel
Special Bar ID #ACecil W. VanDevender
Assistant Special Counsel
Special Bar ID#March 7,
26
Page 29 Case 9:23-cr-80101-AMC Document 375 Entered on FLSD Docket 03/07/2024 Page 29 of
CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
27
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 

Non-Government Works Copyright © 2001-2024 Think Computer Corporation. All Rights Reserved.

About   Privacy   Security   Contact Us

PlainSite
Sign Up
Need Password Help?