Prosecutors say they’re not sure what happened.
Special Counsel Jack Smith delivers remarks on a recently unsealed indictment against former President Donald Trump on June 9, 2023 in Washington, DC. Former U.S. President Donald Trump has been indicted on 37 felony counts in the special counsel’s classified documents probe. (Photo by Chip Somodevilla/Getty Images)
Special counsel Jack Smith’s team on May 3 acknowledged they misled U.S. District Judge Aileen Cannon regarding the handling of evidence in one of the criminal cases against former President Donald Trump.
Prosecutors in a court filing said that in some of the boxes FBI agents seized from President Trump’s Florida resort, the order of papers has been changed from shortly after the seizure.
Prosecutors compared scans of the boxes done in 2022 under orders from Judge Cannon to the present state of the boxes and noticed that the order is not the same.
In a footnote, prosecutors acknowledged that the update contrasts with what they told the judge less than one month ago, during a hearing in the case.
When Judge Cannon during the hearing asked whether the boxes were “in their original, intact form as seized,” a prosecutor on the team said, “they are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents.”
Prosecutors were unable to confirm why the order of papers was changed but offered a theory.
“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,” they said.
The disclosure was made in a filing responding to a request from Walt Nauta, one of President Trump’s co-defendants, for an extension of a deadline to file papers under the Classified Information Procedure Act (CIPA).
Section five of CIPA requires defendants to serve notice when they intend to disclose classified information.
“Regardless of the explanation … where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA section 5 notice,” prosecutors said, with regards to the order of papers having changed in some of the boxes from President Trump’s residence.
In the filing, prosecutors said that the boxes were taken to the FBI’s Washington Field Office following their seizure in Florida in August 2022. The FBI then created an index to link the documents with classification markings to codes, such as “bb,” and also labeled classified cover sheets in the boxes with codes.
“The FBI also generally replaced the handwritten sheets with classified cover sheets annotated with the index code, but regardless, any handwritten sheets that currently remain in the boxes do not represent additional classified documents—they were just not removed when the classified cover sheets with the index code were added,” prosecutors said. “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.”
Tim Fitton, president of the Judicial Watch nonprofit, said on the social media platform X that the admission by prosecutors was a reason “to throw out this sham prosecution.”
The case was brought against President Trump and others over their alleged violation of federal law in handling documents marked classified. Defendants have pleaded not guilty.
Neither Mr. Nauta nor other defendants in the case have responded yet to the new filing.
Mr. Nauta’s request for an extension is one of many documents that are under seal, or unavailable for perusal.
In another recent filing, President Trump’s team said that the case should be dismissed because prosecutors are motivated by “improper political animus,” pointing in part to how White House lawyers worked with the National Archives and Records Administration on its referral to the Department of Justice and how President Joe Biden has said that he was “making sure” President Trump “does not become the next president again.”
Prosecutors opposed the dismissal request but their opposition was filed under seal.