Trump seeks delay in classified documents case, saying prosecutors mishandled evidence

CNN
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Donald Trump’s lawyers have found a new reason to try to delay the classified documents case: Some of the documents found in boxes at Mar-a-Lago have been out of order since FBI agents seized them two years ago.

Trump’s lawyers indicated in a document released on Monday that the shuffling of documents inside boxes of evidence could also be grounds for dismissing the case. They said they would file a motion to dismiss if the prosecution “cannot credibly prove how it seized and handled key evidence in the case, which will be a central issue in any trial.”

In a brief order Monday, U.S. District Judge Aileen Cannon suspended the deadline the defendants faced this week for certain pretrial disclosures and said there would be a follow-up order resetting pretrial deadlines and hearings. The order provided no additional explanation.

Special Counsel Jack Smith’s office acknowledged in a recent court filing that in at least some of the boxes obtained in the Mar-a-Lago search, documents are now in a different order within each box than when the Justice Department took over for first time custody of the boxes.

“President Trump and his attorney are deeply troubled to have learned of these facts approximately 11 months after charges were filed in this case,” Trump’s lawyers wrote in the filing. The disclosures from Smith’s office “raise questions about the investigation and handling of evidence that must be addressed before the matter proceeds.”

Trump was accused of misusing national defense information after the FBI seized boxes in August 2022 at Florida property that contained confidentially marked documents mixed with other documents and personal effects of the former president. Trump and his co-defendants have pleaded not guilty.

Prosecutors noted in their court filing that the boxes were subject to several reviews, including one requested by Trump. Cannon appointed a special master at Trump’s request in 2022 to review seized documents and determine what should be withheld from investigators due to privilege issues.

The order of the documents could become critical to the defense of Trump and his co-defendants. For now, defense lawyers are asking for postponements, arguing that the revelation has disrupted trial preparations.

In Monday’s filing, Trump’s lawyers say they relied on the order of the classified material inside the boxes when they analyzed them as part of the discovery process. At this point, the lawyers say the classified material was “buried inside the boxes,” which they say could help clear Trump of any wrongdoing.

The lawyers further state that “it was our understanding” that sensitive material was found near items that “provided favorable context” around the time the document was placed in the box, according to the lawsuit.

When the boxes were first seized in 2022, they were analyzed for privileged materials by a team of DOJ lawyers separate from the investigation team. Then, as part of another review by investigators, the confidential documents from the boxes were removed and replaced with a placeholder sheet. And as part of the special master process commissioned by Cannon, the contents of the boxes were digitized so that inventories of their contents could be created.

The prosecutors’ document states that the documents and placeholder sheets remained in the boxes in which they were found, but that “there are some boxes where the order of the items within that box is not the same as the associated scans.”

Prosecutors acknowledged the discrepancy in response to a request last week from Trump’s co-defendant, Walt Nauta, that certain pretrial deadlines be postponed.

The defendants were required to tell the court by Thursday what confidential materials they intended to use as part of their defense, but Nauta and Trump argued they could not meet that deadline because of the confusion of evidence.

Nauta previously argued that prosecutors did not sufficiently demonstrate that the boxes he is accused of taking from a warehouse in Mar-a-Lago contained the confidential documents sought by investigators in a May 2022 subpoena.

Special Prosecutor Smith argued that Nauta’s ability to meet this week’s deadline — which Cannon has since withdrawn — should not be affected by the fact that some of the documents were out of order inside each box.

A spokesperson for Smith’s office declined to comment further.

This story has been updated with additional developments.