Special Counsel Jack Smith told a federal court in Florida on Monday that the government did not violate former President Donald Trump’s due process rights in its alleged mishandling, of documents found at Mar-a-ago.
As Breitbart News and others reported in May, Smith acknowledged that some of the evidence was not maintained in the order in which it was represented to the court, leading Republicans to accuse Smith of manipulating evidence.
Against this backdrop of the haphazard manner in which Trump chose to maintain his boxes, he now claims that the precise order of the items within the boxes when they left the White House was critical to his defense, and, what’s more, that FBI agents executing the search warrant in August 2022 should have known that. But neither the law nor the facts provide any basis whatsoever for the Court to find bad faith or spoliation in the unsurprising reality that the order of some of the items may have shifted since then. To the contrary, the FBI agents who conducted the search did so professionally, thoroughly, and carefully under challenging circumstances, particularly given the cluttered state of the boxes and the substantial volume of highly classified documents Trump had retained.
Importantly, at every stage the agents have maintained the integrity of each container in which the evidence was found, that is, box-to-box integrity.
The Department of Justice has already admitted that some of the items shown in public photos of the documents were in fact props, and not the original items.
Reporter Julie Kelly wrote in May (original emphasis):
[D]efense attorneys claim, and the special counsel concedes, that some placeholders do not match the relevant document. “Following defense counsel’s review of the physical boxes…and the documents produced in classified discovery, defense counsel has learned that the cross-reference provided by the Special Counsel’s Office does not contain accurate information,” attorneys representing Trump’s co-defendant Waltine Nauta wrote in a May 1 motion.
The motion forced the special counsel to admit the error. “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet,” Bratt wrote.
In other words, in their zeal to stage a phony photo using official classified cover sheets, FBI agents might have failed to accurately match the placeholder sheet with the appropriate document. This is a potentially case-blowing mistake, particularly if the document in question is one of the 34 records that represents the basis of espionage charges against Trump.
Smith argues in his filing Monday that there is no precedent in the Eleventh Circuit to find that a defendant’s due process rights are violated “by the government’s loss or destruction of evidence.”
He adds: “[N]either the law nor the facts provide any basis whatsoever for the Court to find bad faith or spoliation in the unsurprising reality that the order of some of the items may have shifted since then.”
Judge Aileen Cannon, presiding in the case, has come under intense attack from activists on the left who are upset that she is hearing defense motions on this issue and on the constitutionality of Smith’s appointment, effectively pushing the trial past Election Day.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, “The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency,” now available on Audible. He is also the author of the e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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