declassified | Jack Smith's Florida case. "[Judge Aileen] Cannon repeatedly asked both sides for examples of criminal prosecution for 'other officials who did the same.' She questioned the 'arbitrary enforcement' of the espionage statute, forcing the government to admit that no other former president or vice president has faced criminal prosecution for keeping similar documents and failing to return them.
'This speaks to the arbitrary enforcement...featuring in this case,' Cannon told Bratt. Cannon also pushed back on claims Trump should have expected to face prosecution for storing classified files. Once again noting no former president or vice president-Mike Pence also discovered classified records after Trump was indicted in 2023-has been charged, Cannon suggested it was fair for Trump to expect the same treatment since 'no historical precedent' is on the books. 'Given that landscape,' Cannon continued, Trump could argue he has been unfairly targeted. Which his team already has.
In a motion emailed to the court and the government last month, Trump's attorneys asked to dismiss the case based on 'selective and vindictive prosecution.' Although the motion is not public, Jack Smith quickly responded to defend the Department of Justice's choice to pursue Trump and not Biden. '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,' Smith wrote in a March 7 response. 'Second, the evidence concerning the two men's intent-whether they knowingly possessed and willfully retained such documents-is starkly different.'
In an almost comical passage, Smith admits Biden unlawfully retained classified records-just not as many as Trump. 'Biden possessed 88 documents bearing classification markings, including 18 marked Top Secret. By contrast, Trump possessed 337 documents bearing classification markings, including 64 marked Top Secret.
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