Federal Judge Rejects Texas’s Attempt to Force Jack Smith’s Preservation of Records

A federal judge in Texas has rejected the state’s attempt to prevent special counsel Jack Smith from destroying records related to his prosecution of President-elect Donald Trump.
Texas Attorney General Ken Paxton sued earlier this month, claiming that “Jack Smith’s team has conducted itself in multiple ways that suggest it cannot be blindly trusted to preserve, and eventually produce, all of its records.”
He also submitted a Freedom of Information Act (FOIA) request for relevant documents but suggested an emergency order was needed before an anticipated December deadline for action by the Department of Justice (DOJ).
Judge Matthew Kacsmaryk issued an order on Nov. 25 that said Paxton failed to show a significant or substantial risk that the DOJ would destroy the documents he requested. Kacsmaryk also dismissed as “unserious” Paxton’s concern about a truck parked outside the DOJ headquarters in Washington.
A spokesman for the special counsel’s office did not respond to The Epoch Times’ request for comment before the time of publication. Neither did Paxton’s office.
The DOJ told Kacsmaryk on Nov. 18 that Paxton “cannot demonstrate irreparable harm, because Defendants are not destroying and will not destroy federal records in the possession of the Special Counsel’s Office,” including documents responsive to Paxton’s FOIA request.
As Trump prepares to enter his second term, speculation has arisen as to how or whether his DOJ would investigate Smith’s and other prosecutors’ conduct. Trump has chosen former Florida Attorney General Pam Bondi to lead the department, alongside his attorneys Todd Blanche and Emil Bove—selected for deputy attorney general and principal associate deputy attorney general respectively.
After Trump’s election win, House Republicans demanded that Smith retain his records. They also reiterated outstanding requests for documents and communications from Smith’s office.
Kacsmaryk’s order, as well as filings from the DOJ and Paxton, pointed to the Federal Records Act, which requires agencies to preserve documentation. “The Court must presume that, absent evidence to the contrary, Defendants act in accordance with their foregoing duties,” Kacsmaryk said.
Paxton also pointed to how the DOJ, under Attorney General Merrick Garland’s supervision, released a transcript, but not audio, of an interview that special counsel Robert Hur conducted with President Joe Biden. The White House asserted executive privilege over the audio recording.
“That invocation of Executive Privilege appears to be by every indication frivolous given that the transcript had already been released,” Paxton’s initial complaint read.
In its response to the court, the DOJ said the issue over Biden’s audio “has absolutely nothing to do with Special Counsel Smith’s investigations or records, and has no bearing on the requested relief.”
“A presidential assertion of privilege made to protect law enforcement files on a different matter says nothing about a risk of document destruction by the Special Counsel’s office at issue here or the Department of Justice writ large,” the department’s filing added.
According to the DOJ’s filing, the department’s Mail Referral Unit referred Paxton’s FOIA request to the Office of Information Policy, which handles records requests. The office then acknowledged receipt of the request and told Paxton via letter that the request represented “unusual circumstances” under the Freedom of Information Act.
As a result, the request was assigned to a “complex” processing track with an extended time limit for responding, the DOJ said.