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Blaze News original: Legal experts weigh in: Will staged, mishandled evidence in Trump classified docs case lead to dismissal?
United States District Judge Aileen M. Cannon recently indefinitely postponed the trial date for the classified documents case against former President Donald Trump after the prosecution admitted that the evidence was mishandled.
What's the background?
Trump is facing 40 felony charges for allegedly maintaining classified documents after he left the White House and obstructing the federal government's attempts to retrieve the records.
United States Department of Justice special counsel Jack Smith was appointed to oversee the two federal probes against Trump, which include the classified documents case.
'It's deeply ironic that Jack Smith's team is struggling to properly handle classified information when they want to indict President Trump for mishandling classified information.'
In August 2022, the Federal Bureau of Investigation raided Trump's Mar-a-Lago estate, seizing "102 documents with classification markings" from Trump's office and storage room, according to the superseding indictment filing. The FBI reported that 17 of the records were marked "top secret," 54 were designated "secret," and 31 were labeled "confidential."
Attorney General Merrick Garland authorized the unprecedented raid on the former president's estate.
Two Mar-a-Lago employees, Waltine Nauta and Carlos De Olivera, were also named as co-defendants in the indictment against the former president.
The DOJ released a shocking photograph captured amid the raid at Trump's estate, showing several scattered piles of papers, many of which were color-coded and clearly labeled with classification markings.
The photo op, which gave the impression that the former president had maintained top-secret government documents unmistakably labeled as such, garnered the reaction the DOJ likely intended — corporate media outlets plastered the image everywhere, and Trump's critics were outraged over his alleged reckless actions.
In an August 2022 court filing, Smith's team claimed, "Thirteen boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings … were seized."
"Certain of the documents had colored cover sheets indicating their classification status," his team wrote.
What actually happened?
A recent court filing from Smith's team revealed a much different story regarding the cover sheets.
On May 3, attorneys wrote that the filter team deployed to Mar-a-Lago was focused on ensuring that "no documents were moved from one box to another, but it was not focused on maintaining the sequence of the documents within each box."
"If a box contained potentially privileged material and fell within the scope of the search warrant, the filter team seized the box for later closer review. If a box did not contain potentially privileged documents, the filter team provided the box to the investigative team for on-site review, and if the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet," Smith's team explained.
They noted that they used the cover sheets "until the FBI ran out because there were so many classified documents, at which point the team began using blank sheets with handwritten notes indicating the classification level of the document(s) seized."
In other words, the colored cover sheets marked with various classification levels were not seized from Trump's estate; they were brought in by investigators and staged for the photo op that was shared with the public.
Will Chamberlain, with the Article III Project, told Blaze News that the cover sheets planted by the FBI show "some serious dishonesty and deceptiveness from Jack Smith's team."
Chamberlain stated, "They were willing to create an illusion that it was obvious all these records were classified. That there were documents with giant classified cover sheets throughout Mar-a-Lago. And that was the impression that was given to the entire American public. And in reality, that impression was created by bringing these cover sheets in and putting them on top of other documents. It's extraordinarily unfair. It's deceptive."
Additionally, the FBI's use of the cover sheets leaves many unanswered questions, including how and by whom the classification level of each seized document was determined.
Smith's team was forced to admit that the order of the papers had also been compromised since the raid.
"After the boxes were brought to [the Washington Field Office], the FBI created an index to correlate the documents with classification markings to codes (e.g., document 'bb') and labeled the classified cover sheets in the boxes with the codes for the seized documents," the recent court document continued. "In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet."
When the evidence arrived at the FBI's Washington Field Office, a private company took digital scans of the documents inside each box. However, according to the defense, those scans did not match the initial scans taken in August 2022.
Smith's team attempted to provide a possible explanation for the discrepancies, writing, "Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants' review of the boxes."
"There are some boxes where the order of items within that box is not the same as in the associated scans," the team admitted, adding a small footnote marker to the end of that sentence.
The footnote, which essentially admitted the team previously failed to tell the judge the truth, read, "The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court. See, e.g., 4/12/24 Hearing Tr. at 65 (Government responding to the Court's question of whether the boxes were 'in their original, intact form as seized' by stating '[t]hey are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents')."
'The special counsel's zeal to get Trump has led Jack Smith to make serious errors that have defeated his very object.'
Smith's team stated, "There are several possible explanations, including the above-described instances in which the boxes were accessed, as well as the size and shape of certain items in the boxes possibly leading to movement of items. For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried, especially because many of the boxes are not full."
Blaze News investigative journalist Steve Baker reacted to the case, stating, "The fact that the DOJ prosecutors or FBI investigators might 'jumble' or 'manipulate' evidence is hardly a surprise — especially considering what we've seen over the last three-plus years since January 6."
"I've personally witnessed and reported on the manipulation, embellishment, and even the purposeful exclusion of exculpatory evidence while covering high-profile J6 trials," Baker continued. "The Department of Justice has often done this — seemingly in coordination with the assigned judges — including irrefutable subornation of perjury by federal police officers in the first Oath Keepers trials."
The planted cover sheets reveal the special counsel team's intent to "get Trump, not to do justice," Chamberlain told Blaze News. "It's deeply ironic that Jack Smith's team is struggling to properly handle classified information when they want to indict President Trump for mishandling classified information."
Chamberlain contended that the special counsel's failure to maintain the evidence properly "should ultimately lead to the dismissal of the case."
"That stuff is evidence of exactly whether or not this information was mishandled, but it's also evidence of intent. Like, to what extent was President Trump negligent or reckless in the handling of this classified information? Where the documents are found would be relevant to that," Chamberlain added.
He told Blaze News that it was "pretty obvious" the judge would need to postpone the case.
"There are way too many unresolved issues with regard to discovery," he remarked. "Jack Smith's team, on the one hand, was demanding a trial as urgently as possible and, on the other hand, being extremely restrictive with how the Trump defense was going to be able to review the documents in this case, some of which were classified."
Chamberlain also noted that questions remain about whether Smith was properly appointed as special counsel.
Trump's attorneys filed a motion in response to the prosecution's new admissions, stating they were "deeply troubled."
"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 defense team wrote.
"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," Trump's lawyers said. "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."
Last week, Judge Cannon postponed the trial date, stating that it "would be imprudent and inconsistent with the Court's duty to fully and fairly consider the various pending pre-trial motions before the Court, critical [Classified Information Procedures Act] issues, and additional pretrial and trial preparations necessary to present this case to a jury."
Former Deputy Assistant Attorney General John Yoo told Blaze News that the judge did "the sensible thing" by postponing the trial.
"But the idea that she has put off the trial indefinitely isn't quite right," Yoo remarked. "Instead, this is the prosecution's fault." He noted that the DOJ will have "to prove that each of the documents are classified."
"To do that, it will have to go through onerous procedures to reveal these documents in public — the Constitution guarantees all defendants a public trial. Clearing the documents for trial will take months," Yoo told Blaze News.
He stated, "Once again, the special counsel's zeal to get Trump has led Jack Smith to make serious errors that have defeated his very object — to put Trump on trial before the November elections."
Criminal defense attorney David W. Fischer told Blaze News that the judge's decision to postpone the case has given Trump "the upper hand" by delaying the trial until after the 2024 presidential election. He noted that the mishandling of the documents has "called into question" the FBI's investigation.
Mark Levin commented on the case recently on his show, stating, "You have a special counsel. [Jack Smith's] entire focus is on Donald Trump. It's not on an office like U.S. Attorney's Office, that may have hundreds of ongoing cases, civil and criminal. No, this is his only focus: the so-called January 6 case and the documents case."
"And he slips it into a footnote," Levin continued. "Number one, they lied to the court."
"Number two, what do you mean the order of the documents are different than on the digital? Who did that?" he questioned. "Number three ... before you make a representation to the court about something so serious, you need to make sure the representation is accurate. So why did you tell the court the documents were protected as received when they weren't?"
"Number four, what exactly was the chain of custody of the boxes and the documents in the boxes? Who had access to them and when and where and why?" Levin said. "You can't just go on with a trial when there's a question about the handling of the documents. I mean, Donald Trump's on trial in part because of the handling of these documents."
Levin argued that Cannon will need to order an independent investigation into the mishandling of the records.
"The very substance of the case against Trump, which is a pathetically stupid case, is now applicable to the people who brought the charges and seek to imprison him," he added.
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