Prosecutors: Docs in boxes seized from Mar-a-Lago were inadvertently jumbled

Special counsel Jack Smith’s team acknowledged Friday that some evidence in the prosecution of former President Donald Trump for hoarding classified documents at his Florida home may not be in the same sequence FBI agents found it when they swept into the Mar-a-Lago compound with a search warrant in August 2022.

The concession from prosecutors in a court filing Friday afternoon came after attorneys for one of Trump’s co-defendants asked for a delay in the case because the defense lawyers were having trouble determining precisely where particular documents had come from in the 33 boxes the FBI seized almost two years ago.

In their filing, prosecutors acknowledged the government had previously — and incorrectly — told U.S. District Judge Aileen Cannon that the boxes remained “in their original, intact form as seized,” other than a decision to replace classified documents with placeholder sheets.

That depiction, the prosecutors conceded, is “inconsistent” with their current understanding that some of the documents are not now in the same order as they appear in digital scans of the records that were made in the fall of 2022 after Cannon ordered an unusual process to review whether the FBI may have seized legally privileged records.

“There are some boxes where the order of items within that box is not the same as in the associated scans,” prosecutors wrote, adding in a footnote: “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court.”

Prosecutors claim the discrepancies in the sequence of the records is of no significance to the criminal case filed in June 2023. Smith’s lawyers say the apparent jumble took place despite various precautions, including having an FBI agent present while an outside vendor scanned the documents so that Trump’s attorneys could see what was seized. The 11th Circuit Court of Appeals ultimately halted the review Cannon ordered.

Prosecutors also said the act of moving the boxes might have caused the apparent shifts because of “the size and shape of certain items,” but they did not say if that could account for all the instances where documents appear to be out of the original order.

“For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary [sic], which shift easily when the boxes are carried, especially because many of the boxes are not full,” prosecutors Jay Bratt, Julie Edelstein and David Harbach wrote.

Smith’s team revealed in the filing that FBI agents carried printed “classified cover sheets” during the Aug. 8, 2022, search of Trump’s Mar-a-Lago estate and used them to replace any classified documents they discovered in cardboard Bankers Boxes that littered the former president’s residence.

“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,” the prosecutors wrote.

Later, they said, the handwritten notes were replaced with more formal placeholder sheets, but some of the handwritten ones may have been left in the boxes as well, complicating efforts to link a placeholder to a specific classified document.

“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,” Smith’s team wrote. “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.”

Prosecutors say despite the reordering, each box still contains precisely the same material it had in it when it was seized.

In a post on his Trump Social site Friday, Trump painted the disclosures at catastrophic for the government's case.

Smith "and his team committed blatant Evidence Tampering by mishandling the very Boxes they used as a pretext to bring this Fake Case," Trump said, accusing prosecutors of "deeply illegal" actions that should trigger dismissal of all charges.

Trump’s trial in the classified documents case is still officially set to open on May 20, but all sides in the case have agreed that date is unrealistic. In addition, Trump is currently on trial in New York on state court charges stemming from alleged efforts to cover up payments of hush money during the 2016 presidential campaign to a porn star who claimed to have had a sexual encounter with Trump.

Prosecutors in the classified documents case have accused lawyers for Trump and for co-defendants Walt Nauta and Carlos de Oliveira of deliberate foot-dragging. The defense attorneys say the case has been complicated by restrictions on access to and discussion of highly classified evidence and by obligations related to the hush money case in New York.