Special Counsel Smith insists 'no bad faith' in admitted mishandling of evidence seized from Mar-a-Lago raid

 June 27, 2024

After Special Counsel Jack Smith's office admitted last month that federal investigators mishandled some of the documents seized as evidence during the August 2022 FBI raid on Mar-a-Lago, former President Donald Trump's attorneys called for that evidence to be suppressed and the criminal indictment dismissed.

In a new filing with the court this week, the special counsel's team insisted that the acknowledged mishandling of evidence did not violate Trump's due process rights because it did not occur in "bad faith," Breitbart reported.

In fact, the federal prosecutors even seemed to go so far as to suggest that Trump's "cluttered" and "haphazard manner" of storing boxes of "keepsakes" at Mar-a-Lago was at least partially to blame for the recently disclosed mishandling of documents seized by FBI agents during the raid.

Mishandled evidence and staged photos

In early May, Fox News reported that Special Counsel Smith's office admitted in a filing that some items taken by FBI agents from boxes at Mar-a-Lago were not put back in the same place, which the prosecutors acknowledged was "inconsistent" with their initial assertions that all of the documents at issue had been put back in the boxes they came from "in their original, intact form as seized."

That admission stemmed from a complaint in a filing from the attorneys of one of Trump's co-defendants, Walt Nauta, that a review of the boxes of evidence during the discovery process revealed that the "cross-reference provided by the Special Counsel’s Office does not contain accurate information," per Breitbart.

Further, the Daily Caller reported at the time that Special Counsel Smith admitted that FBI agents replaced the allegedly classified documents seized from Trump's boxes at Mar-a-Lago with fake cover sheets that bore markings like "classified" and "top secret" that were not originally there, with those replacement cover sheets then used as props for photos that were subsequently leaked to the media.

Independent journalist Julie Kelly, among the first to report on the revelations, noted that the replacement cover sheets did not always match up with the allegedly classified documents they were supposed to represent.

She summarized, "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."

Smith responds to Trump's motion for dismissal

Those admissions in May of mishandled evidence led Trump's attorneys to file in June a motion to dismiss based on spoliation of evidence in violation of due process, which called for the dismissal of the indictment and the suppression of evidence seized during the Mar-a-Lago raid.

That filing not only noted the recently disclosed "destruction of important exculpatory evidence" but also accused the government of being "more interested in staging -- and leaking -- manipulated photographs to the press than preserving key exculpatory evidence that has now been lost forever," as well as the special counsel for knowingly sitting on that pertinent information for more than a year before they were forced to acknowledge it.

Now, in a response brief opposing Trump's motion, the special counsel's office claimed that no court had ever found that "a defendant’s due process rights were violated by the government’s loss or destruction of evidence."

That filing alleged that Trump chose to keep classified documents mixed in boxes with personal keepsakes from his presidency and then "took his cluttered collection of keepsakes to Mar-a-Lago, his personal residence and social club, where the boxes traveled from one readily accessible location to another -- a public ballroom, an office space, a bathroom, and a basement storage room."

"Against this backdrop of the haphazard manner in which Trump chose to maintain his boxes, he now claims that the precise order of the items within the boxes when they left the White House was critical to his defense, and, what’s more, that FBI agents executing the search warrant in August 2022 should have known that," the brief continued. "But neither the law nor the facts provide any basis whatsoever for the Court to find bad faith or spoliation in the unsurprising reality that the order of some of the items may have shifted since then."

The special counsel insisted that the FBI agents acted "professionally, thoroughly, and carefully" during the Mar-a-Lago search to maintain the "box-to-box integrity" of the seized items, and asserted, "Nothing has been lost, much less destroyed, and there has been no bad faith" to warrant dismissal of the indictment and suppression of the evidence.

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