Donald Trump (left) attends a news conference at Mar-a-Lago in April 2024 (AP Photo/Wilfredo Lee), (right) Dr. Deborah Birx, White House coronavirus response coordinator, speaks about the coronavirus in the James Brady Press Briefing Room of the White House, Thursday, April 2, 2020, in Washington. (AP Photo/Alex Brandon)
Attorneys for Donald Trump asked the Mar-a-Lago judge to throw out his indictment, arguing that he is being prosecuted under the Espionage Act unlike several similarly situated others, including Dr. Deborah Birx, the White House COVID-19 pandemic response coordinator remembered for squirming in a chair upon hearing the then president suggest at a press conference that a disinfectant “injection” could help treat coronavirus.
The defense began its argument Thursday by appealing to “American history” that is “chock full of public examples involving alleged mishandling of classified information and documents” without Espionage Act and obstruction prosecutions resulting, before naming President Joe Biden, Trump’s former Vice President Mike Pence, former President Bill Clinton, former Clinton National Security Advisor Sandy Berger, former Secretary of State Hillary Clinton, former FBI Director James Comey, General David Petraeus, and Birx.
Trump, charged with willful retention of national defense information and engaging in a conspiracy to obstruct the FBI and a grand jury from recovering classified documents that his co-defendants allegedly tried to conceal at his direction by moving numerous “boxes” around and scheming to delete video footage, maintains that special counsel Jack Smith’s case cannot survive in light of the aforementioned non-prosecution examples.
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“[T]he unproven obstruction allegations by the Special Counsel’s Office cannot save this prosecution. Hillary Clinton and her colleagues deleted 31,830 emails and destroyed data on numerous electronic devices, including after a congressional preservation order,” the filing said. “Comey hid from the FBI that he had used a private scanner and his personal email account to transmit at least two classified documents to his personal attorneys. Berger stole documents from NARA and cut three of them ‘into small pieces,’ which resulted in NARA having informal ‘Sandy Berger’ rules.”
The filing also took aim at Dr. Birx, saying she had “six boxes” of her own of interest to the National Archives (NARA), and that “a classified document” was found inside. But yet, no prosecution, Trump’s lawyers said:
Deborah Birx acted as the White House Coronavirus Response Coordinator between 2020 and 2021. On September 6, 2021, NARA’s General Counsel wrote in an internal email that NARA was “arranging to pick up the PRA materials from Dr. Birx on Tuesday (tomorrow).” A separate internal NARA email thread on September 16 noted that Birx had at least “six boxes,” and that “[s]canning Dr. Birx”[s] correspondence has been slowed because they found a classified document in the mix.” To our knowledge, Dr. Birx is not under investigation and is not being prosecuted.
This was not the last time Birx was mentioned, either.
“It does not appear that Dr. Birx faced charges or even an investigation despite the fact that she (1) retained possession of ‘PRA materials’ until at least September 2021, long after Ferriero was ‘out of patience’ with President Trump, and (2) those materials contained at least one classified document,” the motion to dismiss continued.
The defense then pleaded with U.S. District Judge Aileen Cannon to throw out the indictment on grounds of selective and vindictive prosecution, claiming that the “history of non-prosecution and leniency for similarly situated individuals” they identified is enough to show that the “intolerable and unconstitutional” case was brought for political reasons.
Perhaps anticipating that Cannon would not dismiss the indictment on these grounds, Trump lawyers requested that she at least order up additional discovery and set a hearing on their arguments.
Read the Trump filing here.
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