Former President Donald Trump is raising new objections in his classified documents case in Florida after special counsel Jack Smith recently admitted that documents in some boxes federal investigators retrieved from Trump’s home are now out of order.
Trump’s attorneys asserted that Smith had “failed to maintain the integrity of the contents of at least some of the boxes obtained from Mar-a-Lago.”
“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 attorneys wrote in court filings.
Trump’s defense attorneys urged Judge Aileen Cannon on Monday evening to delay a key deadline in the case because of the revelation. They also warned that unless prosecutors could sufficiently address the issue, Trump would also seek to dismiss the case altogether because of it.
Trump’s delay request, which Cannon honored minutes later, comes after prosecutors said in court papers last week that while investigators took great pains to make certain that documents were not moved from the boxes in which they were found, they did not always preserve the order of the documents within the boxes.
Smith charged Trump last year with willfully retaining national defense information, and he also charged Trump and two co-defendants with obstructing his investigation. The case is in its pretrial phase, which involves meeting certain Classified Information Procedures Act obligations. The next CIPA deadline was initially set for May 9, but Cannon canceled the deadline in light of the discovery controversy and said new deadlines are forthcoming.
Smith had been forced to address the order of the documents in the boxes after one of Trump’s co-defendants, Walt Nauta, raised concerns about discovery he received from Smith’s team that was out of sequence. Nauta, like Trump, argued the May 9 deadline should be postponed.
Prosecutors responded by accusing Nauta of employing a “familiar delay tactic by trying to paint a confusing and misleading picture of the state of discovery.” They argued Nauta had been aware of the deadline for months.
They said they took steps to make certain that documents stayed in their respective boxes but acknowledged that they were not as focused on the order of the items inside the boxes.
“There are some boxes where the order of items within that box is not the same as in the associated scans,” prosecutors wrote.
Prosecutors gave numerous explanations for why contents within boxes would have been moved around, but they argued that ultimately the document order within boxes did not matter.
“Where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice,” prosecutors wrote.
Prosecutors also admitted that in at least one instance, they had misrepresented the state of discovery to the court.
“The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court,” they wrote.
The discovery development presents a fresh complication in an already complex case, and Trump’s attorneys have indicated they plan to zero in on it.
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The defense attorneys argued that the order of the contents in the boxes is pertinent because it could provide evidence of when the items were placed in the boxes. They also warned that they may request sanctions against Smith’s team over the matter, including a request that Cannon drop Trump’s charges.
“It is likely that President Trump will file 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,” they wrote.
