Left: Donald Trump (AP Photo/Mike Stewart, File); Center: U.S. District Judge Aileen Cannon (U.S. Senate); Right: Special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)
After the Special Counsel’s Office responded at length to refute defense claims that the feds’ search of Mar-a-Lago ruined “important exculpatory evidence” in the classified documents case, Donald Trump’s lawyers are asking Judge Aileen Cannon not to take Jack Smith’s word for it and urged her to set an evidentiary hearing.
The Monday filing in support of existing defense efforts to toss out the willful retention of national defense information case took umbrage at the special counsel’s assertion that the judge should deny Trump’s motion “without a hearing” for failing to show that federal agents acting in “bad faith” failed to preserve documents “in the same order as they were [inside their boxes] at the time the raid commenced” in August 2022.
The defense reply began by claiming that the case with serial delays has been rushed by Smith “without necessary discovery and fact-finding” into the “government’s unprecedented and unconstitutional raid at Mar-a-Lago.”
Claiming that the special counsel is on an “election-interference mission,” the defense lawyers requested an evidentiary hearing that they said should be bolstered by an order from the judge forcing “further disclosures regarding the handling of the 15 Boxes” through discovery.
Accusing the prosecution of having a “disrespectful tone” toward Cannon and making material “misrepresentations to the Court” that the order of the documents inside discovered boxes was “intact,” Trump lawyers said the judge should not now take Smith at his word.
“Notwithstanding all of this, the Office apparently believes that they are in a position to demand that the Court resolve factual disputes by taking their word for it. Not so,” the filing said, further pillorying the prosecution for the “nothing short of irresponsible” request to deny their motion to dismiss without a hearing.
“Because of the Office’s failures to date, the Court should no longer accept blanket representations that all of this is under control. At this point, there is too much evidence that just the opposite is true,” the defense added later.
Several days ago, the special counsel said that Trump unlawfully kept “some of the nation’s most highly guarded secrets” in a “haphazard” way at Mar-a-Lago, even mixing in those documents inside boxes with “Christmas ornaments, magazines, clothing, and photographs of himself and others.”
More Law&Crime coverage: Judge Cannon finds Trump complaints of Mar-a-Lago warrant ‘omissions’ didn’t ‘meaningfully challenge’ probable cause, but says fresh look at ‘crime-fraud exception’ needed
Criticizing the defense’s complaints as “newly invented explanations,” the special counsel said it was not true that documents being out of order amounted to the destruction of exculpatory evidence since “box-to-box integrity has been preserved.” Trump lawyers have countered that the order of the documents is important because that evidence, were it to exist, would support the idea the defendant “lacked knowledge and culpable criminal intent.”
The defense repeated that argument in its latest reply.
“[A]ny reasonably objective member of the investigative team would have understood prior to the raid that it would be favorable to the defense if allegedly classified documents were buried in the boxes rather than sitting at the top,” Trump lawyers said.
The defense further said the special counsel made “facially ridiculous” claims that federal agents could hardly have been expected to know at the time of the search that the order of the documents inside the boxes could have had “exculpatory value.”
“If it was ‘nigh impossible’ to keep the boxes intact during the search, then the experienced prosecutors representing the Office in proceedings before Your Honor would never have suggested otherwise,” the defense said, referring to the aforementioned alleged misrepresentations to the court. “That claim is obviously false. Anyone with the patience and inclination to keep an accurate record of the search scene as they found it could have done so by, for example, carefully handling the documents, taking notes regarding the location of the documents, or relying on the FBI photographer who took other staged photos that were leaked shortly after the raid to prejudice the public.”
“The decision to take a contrary course, and subsequently rely on false claims of impossibility, is itself evidence of bad faith,” Trump lawyers asserted.
Smith has said that there’s “no evidence of bad faith” on the part of investigators and that, in any event, witnesses can attest to Trump’s “detailed familiarity” with the documents inside the boxes.
That “familiarity,” the special counsel told Cannon, “prompted some of his staff to call them the ‘Beautiful Mind’ boxes, referring to the film of the same title about genius mathematician John Nash.”
Read the latest defense filing here.
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