Left: Jack Smith discusses an indictment of former President Donald Trump on Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File); Right: Donald Trump speaks to the media before leaving Manhattan criminal court on Monday, May 6, 2024, in New York. (AP Photo/Julia Nikhinson, Pool)
Ex-president Donald Trump alleges that special counsel Jack Smith and other prosecutors have admitted to mishandling the contents of certain boxes from Mar-a-Lago. This led to a filing asking the court to extend looming deadlines.
Late last week, Trump’s personal valet, Waltine “Walt” Nauta, asked for more time to file documents related to classified materials and expert testimony, citing the government's alleged failure to provide an accurate index for the contents of the boxes.
In response, the prosecution dismissed those claims as false, but made some important admissions.
Jack Smith admitted that the order of items in some boxes did not match the associated scans. the motion Smith also acknowledged that this was inconsistent with the previous understanding and representation to the court.
During a hearing on April 12, a member of the special counsel’s team stated that most boxes were in their original form, except for one where classified documents had been removed and placeholders were inserted.
Defense attorneys used this information in a motion, framing it as discovery violations, misrepresentations, and potential evidence mishandling.
The defense included a proposed response to the latest government admission, claiming that Smith attempted to hide the concession in a footnote.
Trump and his legal team expressed concern about learning these facts almost a year after the charges were filed, raising questions about the investigation and evidence handling.
The government's admission of inability to maintain the order of documents, paired with a prior claim in court, gives Trump legal grounds to contest the case.
From the filing, at length:
Regarding the so-called “cover sheets” that the prosecution team used as replacements for allegedly classified documents in the boxes, the Special Counsel’s Office wrote that the FBI “generally” had “replaced the handwritten sheets with classified cover sheets annotated with the index code.” But the Office did not explain why they could not offer a precise, categorical representation about the process that was used instead of a “general” one. The Office also admitted that in “many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.” This further suggests that even if the scans are the “best evidence available,” they are not a reliable record of the boxes’ contents. The “not all” caveat is, however, consistent with the recent and inexplicable disclosure that the “filter team” was “not focused” on the order of documents in the boxes that are at the heart of this case.
The defense argues that these issues affect Trump's motions to suppress evidence and dismiss the case due to prosecutorial misconduct.
Furthermore, the acknowledgment implies that the former president will probably request a motion to compel similar disclosures, unless Smith makes them voluntarily. Additionally, Trump's defense suggests there will be more motions for sanctions based on spoliation, including a motion to dismiss the charges if the Office cannot reliably prove how it seized and handled the key evidence in the case, which will be a central issue at any trial.
More Law&Crime coverage: 'Enormous fraud': Auditing firm for Trump Media hit with charges, lifetime ban by SEC
For several months, the government, the defendants, and the court have been debating the extent to which each side will need access to, can access, and ultimately perceive discovery information, which is subject to the Classified Information Procedures Act or CIPA.
The crux of the matter pertains to what classified information defense counsel can actually use and reveal during trial — all subject to a mandatory notice requirement under CIPA Section 5.
In early April, U.S. District Judge Aileen Cannon set a May 9 deadline for those disclosures, also instructing the defendants to disclose potential expert witnesses they intend to call during the trial and the subject matter of their potential expertise. Nauta requested an indefinite halt of those deadlines over alleged discovery violations, but Trump's attorneys indicate the repercussions could be even more severe.
“For instance, if the case goes to trial or evidentiary hearings, President Trump will now seek to use classified information to cross-examine witnesses regarding appropriate procedures for handling classified information in connection with briefings and evidence in connection with investigations,” the defense filing states. “Defense counsel will also need to re-examine the classified discovery, among other things, to consider new defenses and potential expert notice based on these disclosures, such as defenses and experts focusing on the chain-of-custody and search-execution deficiencies.”
According to lead Trump attorney Todd Blanche, the “failure to maintain the integrity of the evidence in the boxes” affects every single box seized from Mar-a-Lago and directly contradicts the government’s “full-throated but now concededly false assertions of compliance with their discovery obligations.”
Possibly anticipating some criticism, the defense states they could not have been aware of the issue until the prosecution’s acknowledgment.
“During the review of discovery and preparation of pretrial motions, President Trump’s counsel had relied on the scans and believed that the location of allegedly classified documents within the boxes was exculpatory,” the filing continues. “Indeed, it was our understanding that most, and potentially all, of the charged documents were buried within the boxes and located next to other items that provided favorable context regarding, among other things, when the document was placed in a box. It never occurred to us, until last Friday, that the prosecution team could not be trusted to perform the basic task of maintaining the integrity of such evidence despite the expansive resources at their disposal. That is why President Trump’s defense team has not inspected the boxes up to this point and instead focused on other aspects of our defense in motion practice and discovery review.”
Trump suggests that the deadlines for CIPA evidence and expert testimony should be postponed.
The motion explains that the defense cannot be expected to specify classified information for trial when the prosecution team has been revealed to not be trusted to keep existing evidence.
A letter attached used three lines from prosecutors who wrote the special counsel’s Friday admission to present the defense’s case clearly.
The letter expresses concern about the prosecution team failing to preserve important evidence about the location of documents from Mar-a-Lago, which could prove President Trump's innocence. The letter criticizes the late disclosure of this evidence spoliation as a serious breach of constitutional and ethical duties.
On Monday, Cannon allowed the defense to file their sur-reply by May 7 in a separate docket entry.