The classified documents case against Donald Trump has hit major issues that could undermine it.
The DOJ admitted FBI agents brought “top secret” cover sheets to Mar-a-Lago and used them as placeholders when seizing documents, but the defense says documents were disordered.
Legal experts say this evidence tampering could mislead the court and public about what labels were originally on documents.
“It could [complicate the case]. I don’t know whether it will or not, but it certainly could,” stated John Malcolm, vice president for the Heritage Foundation’s Institute for Constitutional Government.
“The allegation or the argument would be, they’ve tampered with the evidence they’ve affected its integrity in some material way. I mean, it would be as if they had messed with somebody else’s DNA sample or had smudged the fingerprint,” Malcolm added.
A crime scene photo showed some documents with these cover sheets, but the DOJ now says the FBI rearranged documents and mismatched some cover sheets.
The judge indefinitely delayed the trial due to pre-trial issues related to evidence handling.
“I don’t think anybody would believe that the President of the United States upon leaving office would personally be monitoring papers and effects. And it’s not inconceivable that something could get inadvertently mixed in,” criminal defense attorney Philip A. Holloway said.
“And so if prosecutors and law enforcement are cherry-picking documents, and slapping these labels on it that says top secret where that label was not already there, it can be very misleading to the viewer,” Holloway added. “And if that viewer is a court, then that’s misleading a court and that’s against the law.”
“[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. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’),” prosecutor Jay Bratt wrote in 2022.
“[If] the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for that purpose,” Bratt wrote recently.
“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,” author Julie Kelly wrote.
Experts feel the disordered evidence damages the prosecution’s credibility and could lead to dismissal, as the case relied on proving Trump’s knowledge of documents.
“Special counsel Jack Smith and his counselor Jay Bratt could face severe consequences if it is proven true that they doctored evidence and presented it to the court and the public knowing it was doctored. They could face discipline from the Justice Department’s Office of Professional Responsibility. They could face sanctions from Judge Cannon and they could face criminal prosecution for obstruction of justice,” wrote Mike Davis, former law clerk for Supreme Court Justice Neil Gorsuch.
“I suspect it was at least partially related to these issues. I suspect that this makes Judge Cannon less inclined to trust the credibility of what government lawyers tell her,” Holloway said.
“It’s becoming more clear to the public that Judge Cannon has serious concerns with how Biden special counsel Jack Smith and his counselor, Jay Bratt are running this criminal prosecution against President Trump,” Davis said.
“Judge Cannon seems to have serious concerns with potential grand jury abuse by Jack Smith and Jay Bratt in D.C. before this unprecedented indictment and Judge Cannon seems very concerned about issues around issues with tampered evidence, spoliation of evidence and chain of custody issues that are serious potential constitutional and ethical violations that could lead to the dismissal of this case,” Davis added.
“It was certainly very foolish by the Special Counsel. I assume it was done negligently but it was very, very sloppy. When you have a documents case and part of it is going to be somebody’s knowledge that they had those documents in their possession, it would be very important to maintain it as close as possible in the original state in which they found them,” Malcolm noted.
Ongoing problems have helped Trump delay multiple legal cases until after the 2024 election.
