Left: Special counsel Jack Smith. Aug. 2023. (AP Photo/Jacquelyn Martin, File)/ Center: Federal prosecutors say FBI agents seized these materials from Mar-a-Lago. The contents of the documents were redacted with white squares. (Image via an Aug. 31, 2022 federal court filing.)/Right: Former President Donald Trump speaks to the media at a Washington hotel, Tuesday, Jan. 9, 2024, after attending a hearing before the D.C. Circuit Court of Appeals at the federal courthouse in Washington. (AP Photo/Susan Walsh)
The special counsel said he’s going to need several more pages to unwind claims by Donald Trump’s defense lawyers that “exculpatory” evidence was ruined “forever” by investigators acting in “bad faith” in their August 2022 search of Mar-a-Lago.
Jack Smith, noting he is set to respond to Trump’s motion to dismiss by Monday, certified, consistent with the U.S. District Judge Aileen Cannon’s rules, that Trump’s defense lawyers consented to the page limit expansion during an email conferral.
The Wednesday filing from the Special Counsel’s Office explained that Trump’s evidence spoliation motion is 25 pages long in its own right and is packed with allegations of wrongdoing on the part of the prosecution, necessitating more room for Smith to reply.
“The Government hereby moves for leave to have an additional seven pages for its opposition in order to be able to fully respond to defendant Trump’s allegations and arguments,” the brief unopposed request said.
More Law&Crime coverage: Trump finally files ‘crucial’ notice on use of classified material as part of Mar-a-Lago defense
On June 11, the day Cannon almost entirely rejected defense arguments that the Espionage Act indictment had deficiencies requiring dismissal, Trump lawyers separately filed a new motion to dismiss, one claiming that the feds destroyed “important exculpatory evidence relating to the locations of the allegedly classified documents at issue” just to leak photos of classified documents scattered across the floor.
Trump claimed that evidence spoliation and violations of due process were additional grounds for tossing the willful retention of national defense information and conspiracy to obstruct case.
The defense maintained that the “prosecution team destroyed exculpatory evidence” by themselves mishandling classified documents amid the Mar-a-Lago search:
The Special Counsel’s Office has wrongfully alleged that President Trump was aware of the contents of boxes in August 2022, where those boxes were packed by others in the White House and moved to Florida in January 2021. The fact that the allegedly classified documents were buried in boxes and comingled with President Trump’s personal effects from his first term in office strongly supported the defense argument that he lacked knowledge and culpable criminal intent with respect to the documents at issue. Any proximity between allegedly classified documents and other dated materials from years before the move, such as letters and newspapers, would have further strengthened this argument. The prosecution team’s instructions to agents who executed the raid essentially acknowledged these propositions, and directed the agents to take care to document the location of both seized items and potentially privileged materials.
However, the agents disregarded those instructions. The government was more interested in staging—and leaking—manipulated photographs to the press than preserving key exculpatory evidence that has now been lost forever.
The defense has further accused Smith’s team of “[a]t least twice” misrepresenting to Cannon that the “order of the documents within each box was intact, i.e., the documents were in the same order as they were at the time the raid commenced.”
Trump lawyers have therefore asked Cannon to find that the “combination of spoliation of exculpatory evidence, affirmative misrepresentations regarding the spoliation, and untimely disclosures regarding these failures” should doom a case marred by “bad-faith” government actors.
“Additionally, the facts set forth in this motion further support suppression of evidence seized in connection with the Mar-a-Lago raid, as well as compelled disclosures regarding evidence of official bias, political animus, and other bad-faith behavior by members of the prosecution team,” the Trump motion said.
Looking ahead to Friday, the judge will preside over a hearing on another Trump motion to dismiss, this one focusing on the former president’s bid to toss the case based on the claimed unlawful appointment of the special counsel.
Cannon has allowed three separate groups of amici curiae, non-party so-called friends of the court, to orally argue the issue. Two conservative blocs will support Trump’s motion to dismiss and one anti-Trump coalition will vehemently oppose it.
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