The One Trap Every Trump Prosecutor Needs to Avoid

Prosecutors in former President Donald Trump’s four criminal cases are knee-deep in producing millions of pages of discovery to ensure he receives a fair trial. The discovery process is not simply a lot of work. It is a land mine for prosecutors—one that has sunk other high-profile cases, such as the 2008 prosecution of then-Sen. Ted Stevens. In the Trump case, the prospects of a discovery error—particularly an accidental one—are significant, and prosecutors must be careful to prevent their cases from imploding on a national stage with some of the highest stakes imaginable.

For 60 years, the Supreme Court’s Brady doctrine has required prosecutors to turn over all evidence to a defendant that is favorable and material. In many cases, the Brady disclosures are straightforward. In a murder case, for example, favorable evidence might be an eyewitness pointing to someone else as the possible shooter. Favorable evidence also includes anything that would discredit a prosecution witness, such as expressions of bias or prior inconsistent statements.

To demonstrate a Brady violation, the defendant needs to show that the withheld evidence was material. If a defendant raises the Brady claim midtrial, the defendant must show that the withheld evidence would lead to an acquittal. If the defendant raises the Brady claim after trial, he also has the burden of showing that he would have been found not guilty if the evidence had been disclosed. Materiality can be an obstacle to defendants winning Brady appeals, but in a complicated factual case like the ones involving Trump, the materiality standard can be easier to meet. In the Trump cases, prosecutors are stitching together a narrative with the testimony of many witnesses who each contribute small but key pieces of the puzzle. If evidence that is withheld would have undermined any one of those puzzle pieces—for example by contradicting a key witness—that may be enough.

So how do the Trump prosecutors avoid committing a Brady violation? Well, the first step is to know the types of circumstances in which they happen.

Prosecutors commit Brady violations in three common situations: First, some prosecutors intentionally hide evidence. Second, prosecutors commit Brady violations because they don’t understand the law and inadvertently fail to disclose required evidence. Third, prosecutors fail to turn over evidence held by other members of the “prosecution team,” such as police officers who work outside the prosecutor’s office.

The first two scenarios seem unlikely in the Trump cases. The whole world is watching, so it would be absurd for special counsel Jack Smith and the other prosecutors to intentionally hide evidence. And it seems doubtful that these prosecutors, knowing the stakes, would make a legal mistake about their discovery obligations, rather than simply erring on the side of disclosure.

The third scenario—turning over all evidence held by the prosecution team—is the trouble spot. The Brady doctrine provides that prosecutors must turn over evidence not just from their own files but also from the files of everyone on the prosecution team, even if the prosecutors have personally never laid eyes on the evidence.

The special counsel team, of course, includes prosecutors and FBI agents who have been working on the Trump cases day and night. But that’s not all. There are other federal prosecutors outside the special counsel’s office, such as those who prosecuted the hundreds of defendants who stormed the Capitol on Jan. 6. Courts have said that the prosecution team includes other prosecutors with information about the defendant’s case.

Then there are the national security agencies involved in gathering evidence about the attack on the Capitol and the “big lie” to overturn the election. Federal courts have said that these agencies are part of the prosecution team that must produce Brady evidence. Will the special counsel’s office be able to check through those files?

And then there’s the House of Representatives’ Jan. 6 committee, which undertook a lengthy investigation of the events at the heart of the D.C. and Georgia criminal cases. Congress is not a law enforcement body. So, in theory, the committee and its dozens of staff are not part of the prosecution team. But we are in uncharted territory. We know little about how closely the special counsel’s team worked with the Jan. 6 committee behind the scenes. It is therefore not outside the realm of possibility that a court could consider the committee’s work to be potential Brady material.

Given the scope of the crimes alleged against Trump, there is a mountain of evidence spread all over Washington—not to mention New York, Georgia, Florida, and elsewhere. Highly competent prosecutors have flunked their Brady obligations in far less complicated situations than this. The special counsel (and prosecutors in Georgia and New York) should therefore have eyes in the back of their heads to look for all possible Brady evidence. Because the goal of any prosecutor is not just to “win,” but to do so in a way that ensures that the process is fair and that any convictions will be upheld on appeal.