Jack Smith Schools Nauta

Same shit, different delay.

This week, Special Counsel Jack Smith submitted the government’s response to Trump co-defendant Walt Nauta’s request to delay the May 9th CIPA (Classified Information Procedures Act) §5 deadline. The Department of Justice defines CIPA §5 as follows: “The linchpin of CIPA is section 5(a), which requires a defendant who reasonably intends to disclose (or cause the disclosure of) classified information to provide timely pretrial written notice of his intention to the Court and the Government. If a defendant fails to provide a sufficiently detailed notice far enough in advance of trial to permit the implementation of CIPA procedures, section 5(b) provides for preclusion.”

To set this up, you might recall a filing from Jack Smith from February 2nd responding to Trump’s Motion to Compel Discovery. Trump had complained in his motion that he was unable to get the CCTV footage Jack Smith had obtained with a search warrant, and that he was unable to watch them. Jack Smith laid it out in February like this:

“The defendants (Trump, Nauta, and DeOliveira) ask the Court to “compel the production of CCTV footage in a manner that is readily accessible to defense counsel.” The Government has met and exceeded its discovery obligations for production of CCTV footage, and their request is currently based on easily rectifiable user error, which has now been addressed, rendering the request moot.”

Jack Smith sent the CCTV footage nearly a YEAR ago: “The Government provided counsel for Trump a link to the first CCTV production on June 21, 2023, and a link to the second CCTV production on July 31, 2023. Counsel for Nauta received a link to the first CCTV production on July 6, 2023, and a link to the second CCTV production on July 31, 2023. Counsel for De Oliveira received a link to both CCTV productions on August 11, 2023.”

But that’s not all!

“The Government provided this third-party CCTV footage via electronic links and offered as a courtesy to deliver to the defense hard drive arrays containing replicas of the CCTV productions. The Government also provided an index of the produced CCTV footage, and specific clips of CCTV footage referenced in the Superseding Indictment or otherwise identified as pertinent to the case. To further facilitate ease of review, the Government later created and distributed to defense counsel an additional detailed index of footage obtained during the investigation, that included camera names, locations, camera type, date range of footage received, and production/source log details. In correspondence accompanying each discovery production, the Government offered to help defense counsel if they had any questions about how to access the production sets, or any difficulty doing so. Counsel for Trump has never reported to the Government being unable to view the footage as produced”

In October, 2023 - four months after receiving the footage, DeOliveira’s lawyer complained that he was having trouble viewing the footage and didn’t own a computer. So the government GAVE him one. Later that same month, Nauta complained he couldn’t watch the footage, so the government gave him a laptop, too.

Then nearly THREE months later in January, they got an email from Nauta saying he was having problems launching the app to watch the footage. Jack Smith wrote:

“This most recent problem—the apparent basis for the statement in defendants’ brief that “[d]efense counsel for Mr. Nauta was not able to launch the proprietary video player at all” —omits that for over two months he did not even attempt to launch the player the Government provided (on the laptop that the Government also provided), and did not do so until days before the motion to compel was due. In any event, once notified of the problem, the Government provided prompt assistance in diagnosing the simple and easily correctable user error that has now been resolved.”

I kinda wish we knew what the “simple and easily correctable user error” was.

All of this is important context to the most recent filing by Jack Smith, opposing Nauta’s request for more time to file his CIPA §5 notice. Nauta is at it again, complaining about discovery. Yesterday, Jack Smith wrote in response:

“On April 10, 2024, the Court set a May 9 deadline for defendants’ expert disclosures and notice pursuant to Section 5(a) of the Classified Information Procedures Act (“CIPA”). Three weeks later, on May 1, defendant Waltine Nauta moved for an extension of the deadline. Originally, Nauta had counted on leveraging his counsel’s vacation and trial schedule to delay the proceedings. But when his counsel’s trial schedule excuse evaporated, Nauta was forced to devise a new basis—that the Government’s discovery is insufficient for him to identify the classified evidence he wants to disclose at trial and to notice any expert testimony. Nauta’s latest basis for delay is both factually wrong—the Government has afforded Nauta technical support, indexing, and material not required by the Federal Rules or provided in most criminal cases—and legally baseless: the shortfalls Nauta alleges do not impact preparing a CIPA Section 5 notice or a Rule 16 expert notice. The Court should deny his motion.”

One of my favorite things about a Jack Smith filing is that he has a distinct talent for saying “you’re an idiot liar” in the most eloquent way possible. It’s the legal version of “bless your heart”:

“In his motion, Nauta resorts to a familiar tactic by trying to paint a confusing and misleading picture of the state of discovery, but at bottom, his arguments are uncomplicated. First, as to CIPA Section 5, Nauta claims that he cannot make the required disclosures without knowing “for certain” (a) which documents produced in classified discovery were recovered from boxes in the Storage Room; and (b) where those documents were found in the boxes. Both claims are flawed. The premise of the first—that Nauta has not been informed which documents came from storage room boxes—is inaccurate. Nauta was provided that information many months ago. The conclusion of the second—that Nauta needs to know where the documents were within each box in order to make a CIPA Section 5 disclosure—is recently manufactured and not credible.”

So first, Nauta claims he can’t provide the names of the experts he intends to use at trial by the deadline because Jack Smith hasn’t provided the images they took of his devices. That’s bullshit. Not only did Special Counsel provide the images last August, they also provided the images of the two classified documents separately, AND a forensic report on the metadata of those two images.

Jack Smith then outlines the factual background, shredding Nauta’s arguments: “The purpose of CIPA Section 5 is simple: to require notice to the Government and the Court of any classified information a defendant expects to disclose at trial or a pretrial proceeding. Nauta has known for months that he would be required to provide such notice, and, as discussed below, he has for months had access to the information to equip him to do so on the Court’s schedule. A review of the procedural history underscores his gamesmanship.”

Here’s the timeline of how this went down:

July 2023: DoJ produced unclassified discovery to Nauta. This is one month after Nauta was indicted. DoJ told him to contact them when they’re ready to inspect the unclassified stuff seized during the August 8, 2022 search of Mar-a-Lago

November 2023: The original CIPA §5 deadline. Nauta hadn’t contacted the government to inspect the stuff.

March 2024: Nauta contacted the government to inspect the stuff. Eight months after the DoJ said “hey, let us know when you want to inspect the stuff.

DoJ arranged for them to review the stuff 8 days later. Nauta’s lawyer, Stanley Woodward (who Trump pays for), only reviewed 8 of the 27 boxes the DoJ made available to him.

April 10th: Nauta informed the government they’d be seeking a delay of the May 9 CIPA §5 deadline, claiming Woodward would be on vacation, and then had another trial beginning April 29th.

April 13th: Trump filed a motion to postpone the May 9 deadline, citing his NY criminal trial - but Cannon set the deadline in April 10th and was well aware of the NY criminal trial. She has yet to rule on that motion.

April 24th: Woodward told the court his April 29th trial had been delayed. Turns out it was delayed SIX DAYS before he informed the court. That’s when Nauta came up with his new excuse to delay the May 9 deadline: that items in the boxes appeared to be in a different order than they appear in the scans of the boxes provided during discovery. None of those concerns were raised during inspection of the boxes, nor anytime in the nearly two months since. Besides, that’s not something Nauta needs to file his CIPA §5 notice.

Jack Smith then goes into the background of the order of the items in the boxes, and we learn something pretty incredible. Andy McCabe and I discuss this during the May 5th episode of the Jack podcast:

“During the August 8 search at Mar-a-Lago, the Government deployed a filter team to search the boxes before the investigative team performed their search. The filter team took care to ensure that no documents were moved from one box to another, but it was not focused on maintaining the sequence of documents within each box. If a box contained potentially privileged material and fell within the scope of the search warrant, the filter team seized the box for later closer review. If a box did not contain potentially privileged documents, the filter team provided the box to the investigative team for on-site review, and if the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for that purpose, until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized.”

This tells me two things: the government was not prepared for how many classified documents it would find, and holy shit, the government was not prepared for how many classified documents it would find.

The government then admits the order of the documents in the boxes now does differ from the order they were in when they were scanned back in the day. They offer a few explanations: that authorized people have had to access the boxes, and that some of the odd sized objects could have shifted. DoJ says for the best order, go with the scans performed right after the search. Regardless, none of this is necessary for the CIPA deadline:

“Nauta offers no explanation for how intra-box document sequencing would impact his Section 5 notice. Even if Nauta wanted to elicit testimony about where a classified document was stored within a box, that would not require him to disclose the contents of the classified document—obviating the need for a Section 5 notice altogether. There are no Section 793 charges against Nauta, and it is unclear why he “reasonably expects to disclose or to cause the disclosure of” classified information at all, much less why he needs additional time to parse the exact location of items within the boxes in order to identify what classified information he wishes to disclose at trial.”

Then comes the death blow:

“Nauta’s difficulty meeting the Court’s deadline is entirely of his own making. He has had information about which classified documents are located in which boxes for months, and failed to raise with the Government his current “issue” about intra-box sequencing until over nine months after the boxes were made available to him—and then only after his primary excuse for delay (trial in another district) disappeared. Nauta’s disregard for the Court’s deadlines should not be rewarded with an extension.”

Bless your heart, Nauta. Bless your heart.

You can read the full filing here. Thanks for reading The Breakdown!