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‘Against The Law’: Staged Docs Could Endanger Jack Smith’s Case Against Trump

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OPINION: This article may contain commentary which reflects the author's opinion.


Attorneys believe a stunning revelation made last week by Special Counsel Jack Smith’s prosecutors in Donald Trump’s classified documents case could become a huge problem in trying to convict the former president.

While much of the attention regarding Trump’s legal woes is focused on his ongoing hush money trial in Manhattan, some legal analysts and experts have begun to focus on his classified documents case, especially following a filing by Smith’s team that raised eyebrows.

In a recent court filing, Jay Bratt, the lead Department of Justice (DOJ) prosecutor now part of special counsel Jack Smith’s team, acknowledged that the FBI used cover sheets labeled “top secret” during the raid at Mar-a-Lago. Bratt explained that these sheets served as placeholders for the classified documents discovered at the scene. Now, according to court documents first reported by Declassified with Julie Kelly, both Trump’s defense team and the special counsel acknowledge that the documents seized from the former president’s residence are out of order.

Lawyers who spoke to The Daily Caller said the latest development may impact the case’s integrity in court and the public’s eyes.

“It could [complicate the case]. I don’t know whether it will or not, but it certainly could,” John Malcolm, vice president for the Heritage Foundation’s Institute for Constitutional Government and former deputy assistant attorney general in the DOJ’s Criminal Division, said.

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“The allegation or the argument would be, they’ve tampered with the evidence they’ve affected its integrity in some material way. I mean, it would be as if they had messed with somebody else’s DNA sample or had smudged the fingerprint,” Malcolm added.

Malcolm mentioned that if the prosecution attempts to argue that Trump must have been aware of the documents because they were located near files he frequently accessed, the disorganization of the evidence could pose challenges for their case.

“I don’t think anybody would believe that the President of the United States upon leaving office would personally be monitoring papers and effects. And it’s not inconceivable that something could get inadvertently mixed in,” Philip A. Holloway, a criminal defense attorney and legal analyst, told the outlet.

“And so if prosecutors and law enforcement are cherry-picking documents, and slapping these labels on it that says top secret where that label was not already there, it can be very misleading to the viewer,” Holloway noted further. “And if that viewer is a court, then that’s misleading a court and that’s against the law.”

In the weeks after the raid, an FBI photo of the crime scene at Mar-a-Lago went viral, revealing a mix of documents, some marked as “top secret.” Critics seized on the image to question how Trump could have unknowingly carried out documents with visible markings from the White House.

“[Thirteen] boxes or containers contained documents with classification markings, and in all, over one hundred unique documents with classification markings…were seized. Certain of the documents had colored cover sheets indicating their classification status. See, e.g., Attachment F (redacted FBI photograph of certain documents and classified cover sheets recovered from a container in the ‘45 office’),” Bratt wrote in an August 2022 court filing.

Bratt later clarified that the “colored cover sheets” captured in the photo were the “top secret” sheets.

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“[If] the investigative team found a document with classification markings, it removed the document, segregated it, and replaced it with a placeholder sheet. The investigative team used classified cover sheets for that purpose,” Bratt wrote in the most recent filing with U.S. District Judge Aileen Cannon, who is overseeing the case.

Kelly described what Bratt and Smith’s prosecutors actually did: “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.”

Bratt recently admitted that some documents were rearranged, and not all files were appropriately matched with a cover sheet. However, in many cases, Bratt said the FBI’s ordering was accurate.

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