“Borders on frivolous”: Legal experts say special counsel filing “embarrasses” Trump’s lawyers

Special counsel Jack Smith's team on Thursday slammed former President Donald Trump's bid for an indefinite delay of his Mar-a-Lago documents trial.

The former president's legal team asked Trump-appointed Judge Aileen Cannon to delay the trial indefinitely, citing his 2024 presidential campaign. Smith's team, which is seeking a December trial, argued on Thursday that Trump should be treated like any other criminal defendant.

"The demands of defendants' professional schedules do not provide a basis to delay trial in this case. Many indicted defendants have demanding jobs that require a considerable amount of their time and energy, or a significant amount of travel. The Speedy Trial Act contemplates no such factor as a basis for a continuance, and the court should not indulge it here," the filing said.

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Prosecutors also rejected Trump lawyers' claim that the Presidential Records Act gave Trump the right to take any secret documents, writing that the argument "borders on frivolous."

"The PRA is not a criminal statute, and in no way purports to address the retention of national security information," the filing said. "The defendants are, of course, free to make whatever arguments they like for dismissal of the indictment, and the government will respond promptly. But they should not be permitted to gesture at a baseless legal argument, call it 'novel,' and then claim that the court will require an indefinite continuance in order to resolve it."

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Prosecutors also accused Trump's lawyers of providing a "misleading" picture of the amount of evidence the Justice Department turned over in discovery after they cited the need for more time to review the trove of documents. Though Trump's team complained that they were handed 800,000 pages of discovery, prosecutors say only 4,500 pages are the "key" documents in the case.

Smith's team also pushed back on Trump lawyers' claim that they needed to review nine months of surveillance footage from Mar-a-Lago.

"The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage," the filing said.

Prosecutors also noted that only two of Trump's lawyers have submitted forms required to obtain a security clearance to view the documents.

"There is no basis in law or fact for proceeding in such an indeterminate and open-ended fashion, and the Defendants provide none," Smith's filing said. "In sum, neither the amount of classified discovery in this case nor the timetable for its production is a reason for an indefinite continuance of the trial date," it added.

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Legal experts marveled at Smith's response to Trump's team.

"Smith's team comes out breathing fire in this oppo brief," tweeted national security attorney Bradley Moss.

"Jack Smith has responded to Trump's request that the judge forego setting a trial date in the Mar-a-Lago prosecution & it's a doozy," wrote former U.S. Attorney Joyce Vance. "Interestingly, he's no longer President Trump, Smith just refers to him as 'Trump.' Just like any other criminal defendant."

Former federal prosecutor Glenn Kirschner told MSNBC that Smith and his team "don't mince words" and "they don't pull punches."

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Kirschner said the filing "feels like a sign of the prosecution to come."

"I think that they are going to continue to insist on a timely trial date, and in fact, on page one of this reading, they highlight how the Trump defense team failed," he said. "And really, in its most important endeavor, when they filed their pleading on July 10th. They said 'judge, don't set a trial date.' One of the first things Jack Smith pointed out, is that the Speedy Trial Act says the judge shall set a date certain for the trial to begin. So they really just sort of embarrass the Trump defense team's request and they don't let up for the ten pages."

But former federal prosecutor Renato Mariotti cautioned that while Smith's "arguments are good," most "judges would be sympathetic to defense counsel who are reviewing over 400,000 documents amidst work on other cases."

"Most judges would not push this case faster than a typical complex case of its type, which is what Smith is asking for," he wrote.

Mariotti explained that Trump's lawyers are using Smith's push for a fast schedule "against him" by pointing to the "sheer volume of discovery." Most judges would set a tentative trial date likely around the middle of 2024, he wrote, though delay tactics could push it to 2025 or even 2026.

"That would be true even if the defendant's name was John Doe and the judge's name wasn't Aileen Cannon. But the defendant is Trump, and the judge is Cannon, so I'd be surprised if she doesn't do at least what most judges would do in this situation," Mariotti wrote.

"What Smith isn't saying — but many in the public believe — is that a speedy trial is necessary to ensure that Trump doesn't subvert the judicial process entirely," he added. "I don't think most judges would (overtly, at least) factor that in. Most wouldn't delay indefinitely either."

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