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Judge Aileen Cannon suspended a key deadline in former President Trump’s documents case after his attorneys suggested special counsel Jack Smith’s team had “failed to preserve critical evidence” in the case, in response to prosecutors disclosing that some classified records may not be in the original order in which they were found.
The suspension marks yet another delay in a prosecution where Cannon has yet to even set a new trial date, casting further doubt on the chances the case will come before a jury ahead of the election.
It also scuttles an important discussion over which classified documents Trump and his co-defendants wish to use at trial — a battle now waylaid by the former president even as prosecutors argue “intra-box document sequencing” has no bearing on how the defendants will build their case.
Cannon did not set a new deadline on the matter, and settling how classified documents will be handled at trial could itself take months to resolve.
In a Saturday letter posted to the court docket Tuesday morning, Trump’s legal team pounces on the admission by Smith’s team that the order in which the documents were found may have shifted slightly.
“Your failure to disclose the spoliation of this evidence until this month is an extraordinary breach of your constitutional and ethical obligations,” Trump attorney Todd Blanche wrote.
The letter lays out a series of demands for more information, including on the instructions given to those who initially searched the boxes, all communications surrounding the searches of the boxes and their movements, and a list of personnel who had access to them.
Smith’s team waved off arguments from Trump’s co-defendant and valet Walt Nauta on Friday asking to delay his deadline to lay out his plans for using classified information in his defense.
“The filter team took care to ensure that no documents were moved from one box to another, but it was not focused on maintaining the sequence of documents within each box,” prosecutors wrote.
“[Nauta] has had information about which classified documents are located in which boxes for months, and failed to raise with the Government his current ‘issue’ about intra-box sequencing until over nine months after the boxes were made available to him,” prosecutors added.
But the filing included other details about the search of Trump’s home — including that law enforcement was unprepared for the sheer amount of classified information they found at Mar-a-Lago, running out of the cover sheets they designed to serve as placeholders.
“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, 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,” prosecutors noted.
Any other jostling of the documents would have happened as a result of the special master review demanded by Trump’s team as well as shifting of small items such as index cards and stationery, Smith’s team wrote.
Trump’s team in their letter shot back at Smith’s efforts to dismiss the issue, saying it has repercussions beyond what classified information might be presented at trial.
“You cannot seriously contend that your recent spoliation concession is irrelevant to President Trump’s pending pretrial motions,” Blanche wrote.
