05/18/2024

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Jack Smith, on the left; Donald Trump, on the right

‘Failed to preserve critical evidence’: Trump motion could shake up Mar-a-Lago case after Jack Smith admits his office misled court about location of documents in seized boxes

Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File); Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York. (AP Photo/Julia Nikhinson, Pool)

Former President Donald Trump alleges special counsel Jack Smith and other prosecutors admittedly “failed to maintain the integrity of the contents of certain boxes obtained at Mar-a-Lago” in a Monday filing asking the court to cancel a set of looming deadlines.

Late last week, Trump’s personal valet, Waltine “Walt” Nauta, requested extra time to file two sets of documents related to classified materials and expert testimony. The basis for those requests was the government’s alleged failure to provide an “accurate” index that cross-referenced the contents of the boxes.

In response, the prosecution characterized those claims as bogus and essentially made up. But there were some key admissions.

“[T]here are some boxes where the order of items within that box is not the same as in the associated scans,” Smith admitted in the body of the motion before adding in a footnote: “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the court.”

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    During a hearing on April 12, a member of the special counsel’s team responded to a question from Cannon as to whether the boxes were “in their original, intact form as seized” by stating “they are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents.”

    Defense attorneys seized on that language and, in a motion seeking leave to file a sur-reply — a reply to a motion that can only be filed with court approval since all briefs on an issue have been filed — framed the disclosure as “discovery violations, misrepresentations to the Court and potential spoliation resulting from the mishandling of boxes.”

    Included with the motion, was a copy of the proposed defense response to the government’s latest admission in the case — which alleges Smith “attempted to bury” the concession “in a footnote.”

    “President Trump and counsel are deeply troubled to be learning of these facts approximately 11 months after the charges were filed in this case,” the would-be filing reads. “The May 3, 2024, disclosures by the Special Counsel’s Office raise questions about the investigation and the handling of evidence that must be addressed before the matter proceeds.”

    The government’s admitted inability to maintain the order of the documents in the boxes, coupled with a prior in-court claim to the contrary, has provided Trump with ample legal angles to attack.

    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 says those issues implicate Trump’s motions to suppress evidence and to dismiss based on prosecutorial misconduct.

    Additionally, the admission means the former president is likely to file a motion to further compel similar disclosures — unless Smith makes such disclosures voluntarily. On top of that, Trump’s defense previewed, there will likely be “additional motions for sanctions based on spoliation, including a motion to dismiss the charges if the Office cannot prove in a reliable way how it seized and handled the key evidence in the case, which will be a central issue at any trial.”

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    For several months now, the government, the defendants and the court have been arguing over the extent to which each side will need access to, can access, and ultimately view discovery information, which is subject to the Classified Information Procedures Act or CIPA.

    The heart of the matter concerns what classified information defense counsel can actually use and disclose during trial — all of which is 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 asked for an indefinite stay of those deadlines over the alleged discovery violations but Trump’s attorneys suggest the fallout could be even greater.

    “For example, if the case proceeds 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 reads. “Defense counsel will also need to re-review the classified discovery, among other things, to consider new defenses and potential expert notice based on these disclosures, such as defenses and experts that focus on the chain-of-custody and search-execution deficiencies.”

    To hear lead Trump attorney Todd Blanche tell it, the “failure to maintain the integrity of the evidence in the boxes” implicates 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.”

    Perhaps anticipating some criticism, the defense says they could not have known about the issue until the prosecution’s admission.

    “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 goes on. “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, inter alia, 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.”

    And, as for the upcoming deadlines on CIPA evidence and expert testimony, Trump says those should be held in abeyance.

    “Defense counsel cannot reasonably be expected to specify classified information that they intend to offer at trial when the Office recently disclosed that one of the most basic premises of the criminal justice process — that the prosecution team can be trusted to maintain existing evidence — no longer applies,” the motion goes on.

    An attached letter used three lines from prosecutors who authored the special counsel’s Friday admission to state the defense’s case plainly.

    “We are troubled by the concession in your May 3 submission that the prosecution team failed to preserve critical evidence relating to the location of documents within boxes obtained from Mar-a-Lago,” the letter reads. “The documents’ location constituted exculpatory information relating to, inter alia, the complete absence of culpable criminal intent by President Trump … Your failure to disclose the spoliation of this evidence until this month is an extraordinary breach of your constitutional and ethical obligations.”

    Late Monday, Cannon gave leave for the defense to file their sur-reply — directing them to do so in a separate docket entry by May 7.

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    The post ‘Failed to preserve critical evidence’: Trump motion could shake up Mar-a-Lago case after Jack Smith admits his office misled court about location of documents in seized boxes first appeared on Law & Crime.