Jack Smith document case in trouble; possible evidence tampering

[Mountain Man]

Judge Cannon announced that the Mar-a-Lago document case will be suspended indefinitely while she sorts out a number of interconnected issues, including possible selective prosecution, how much contact Jack Smith has had with the White House, and whether or not his appointment was even legal.

Possibly the most damning of these is the fact that the prosecution may have tampered with the evidence:

According to a Friday court filing, prosecutors said documents the FBI seized from Trump’s Mar-a-Lago residence are no longer in the same order in which they found them, and some are mislabeled and may even be misplaced. A government “filter team” that dealt with the boxes once the FBI took them “was not focused on maintaining the sequence of documents within each box,” the special counsel’s office wrote in the filing.

Later the filing says, of early inventories and scanned records of the seized document boxes, “Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.” A footnote on this last sentence says: “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court.”

The filing also suggests the Department of Justice and FBI may have lost and mislabeled some of the documents. When the agencies first took the documents at Mar-a-Lago, government employees used many blank sheets of paper as substitutes and cover papers for what they decided might be classified documents.

After the FBI brought the document boxes to Washington DC, federal employees and contractors began replacing these “handwritten sheets” with proper classified document covers. At that point, the filing says, “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.” This indicates the special counsel’s office disclosed it isn’t sure whether some it lost or mislabeled some of the allegedly classified documents it seized in the Trump raid.

In response, Trump’s defense team filed a motion to dismiss the case over prosecutorial misconduct.

https://thefederalist.com/2024/05/06...ocuments-case/

If the prosecutors shuffled documents around, mislabeled some, and lost others, it begs the question of whether or not documents were added.

This alone should result in the case being dismissed with prejudice.

[Sam]

Judge Cannon announced that the Mar-a-Lago document case will be suspended indefinitely while she sorts out a number of interconnected issues, including possible selective prosecution, how much contact Jack Smith has had with the White House, and whether or not his appointment was even legal.

Possibly the most damning of these is the fact that the prosecution may have tampered with the evidence:

According to a Friday court filing, prosecutors said documents the FBI seized from Trump’s Mar-a-Lago residence are no longer in the same order in which they found them, and some are mislabeled and may even be misplaced. A government “filter team” that dealt with the boxes once the FBI took them “was not focused on maintaining the sequence of documents within each box,” the special counsel’s office wrote in the filing.

Later the filing says, of early inventories and scanned records of the seized document boxes, “Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.” A footnote on this last sentence says: “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court.”

The filing also suggests the Department of Justice and FBI may have lost and mislabeled some of the documents. When the agencies first took the documents at Mar-a-Lago, government employees used many blank sheets of paper as substitutes and cover papers for what they decided might be classified documents.

After the FBI brought the document boxes to Washington DC, federal employees and contractors began replacing these “handwritten sheets” with proper classified document covers. At that point, the filing says, “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.” This indicates the special counsel’s office disclosed it isn’t sure whether some it lost or mislabeled some of the allegedly classified documents it seized in the Trump raid.

In response, Trump’s defense team filed a motion to dismiss the case over prosecutorial misconduct.

https://thefederalist.com/2024/05/06...ocuments-case/

If the prosecutors shuffled documents around, mislabeled some, and lost others, it begs the question of whether or not documents were added.

This alone should result in the case being dismissed with prejudice.

No, it shouldn't. If the documents were added intentionally, why wouldn't they have been scanned and maintained "in order"? If documents were added after the initial teams cataloged them, why would they be included in the initial catalogs?

This is very much not an insurmountable problem for a prosecution and wouldn't even be an issue if Robert Hur had recommended charging Biden, as the most important box of documents in that case was similarly mishandled.

-Sam

[Ronson]

The stormtroopers might have scrambled the folders when they scattered them for photo ops. CNN was getting impatient and told them to hurry up.

[JimL]

Judge Cannon announced that the Mar-a-Lago document case will be suspended indefinitely while she sorts out a number of interconnected issues, including possible selective prosecution, how much contact Jack Smith has had with the White House, and whether or not his appointment was even legal.

Possibly the most damning of these is the fact that the prosecution may have tampered with the evidence:

According to a Friday court filing, prosecutors said documents the FBI seized from Trump’s Mar-a-Lago residence are no longer in the same order in which they found them, and some are mislabeled and may even be misplaced. A government “filter team” that dealt with the boxes once the FBI took them “was not focused on maintaining the sequence of documents within each box,” the special counsel’s office wrote in the filing.

Later the filing says, of early inventories and scanned records of the seized document boxes, “Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.” A footnote on this last sentence says: “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court.”

The filing also suggests the Department of Justice and FBI may have lost and mislabeled some of the documents. When the agencies first took the documents at Mar-a-Lago, government employees used many blank sheets of paper as substitutes and cover papers for what they decided might be classified documents.

After the FBI brought the document boxes to Washington DC, federal employees and contractors began replacing these “handwritten sheets” with proper classified document covers. At that point, the filing says, “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.” This indicates the special counsel’s office disclosed it isn’t sure whether some it lost or mislabeled some of the allegedly classified documents it seized in the Trump raid.

In response, Trump’s defense team filed a motion to dismiss the case over prosecutorial misconduct.

https://thefederalist.com/2024/05/06...ocuments-case/

If the prosecutors shuffled documents around, mislabeled some, and lost others, it begs the question of whether or not documents were added.

This alone should result in the case being dismissed with prejudice.

[Mountain Man]

No, it shouldn't. If the documents were added intentionally, why wouldn't they have been scanned and maintained "in order"? If documents were added after the initial teams cataloged them, why would they be included in the initial catalogs?

This is very much not an insurmountable problem for a prosecution and wouldn't even be an issue if Robert Hur had recommended charging Biden, as the most important box of documents in that case was similarly mishandled.

-Sam

Right, the prosecution admitting they mishandled, tampered with, and lost parts of a key piece of evidence is no big deal. Sure.

You ask why the documents weren't scanned and maintained in order. That's a very good question! Why weren't they?

[Sam]

Right, the prosecution admitting they mishandled, tampered with, and lost parts of a key piece of evidence is no big deal. Sure.

You ask why the documents weren't scanned and maintained in order. That's a very good question! Why weren't they?

That's not what I asked. What I asked was: if the law enforcement officers had wanted to plant evidence at the scene, why would they not catalog that evidence "in order"? If evidence was added after the initial cataloging, how did that evidence come to appear in the initial cataloging?

The point being that the insinuation — that some mishandled documents were probably or even possibly the result of intentional evidence tampering — doesn't hold up under even the lightest scrutiny.

Now if the prosecution actually lost evidence, it likely can't introduce those particular pieces of evidence at trial. Being spoiled for choice with the sheer number of classified documents cataloged, however, I don't see that as a particularly high hurdle to overcome.

-Sam

[Ronson]

"Law enforcement" wouldn't have access to top secret documents to plant on Trump.

Now, they could claim that the classified documents they found were scattered in unsecure areas; drop a folder on the floor of a public bathroom and take a pic of it next to a toilet. Something like that.

[Sam]

"Law enforcement" wouldn't have access to top secret documents to plant on Trump.

Now, they could claim that the classified documents they found were scattered in unsecure areas; drop a folder on the floor of a public bathroom and take a pic of it next to a toilet. Something like that.

And they wouldn't be able to use that at trial if they couldn't produce the documents. So the argument is that the FBI just threw around a bunch of folders all around Mar-a-Lago, cataloged them but, in the haste of their conspiracy, bungled the operation by mis-ordering them?

OK, that's neither evidence nor reasonable. And it doesn't touch on the fact that FBI does have classified documents, properly-ordered, taken from Mar-a-Lago. So it's also completely unnecessary.

So a case must be made that the order of documents in a given box seized from Mar-a-Lago is pertinent to the accusation. No such argument is presented: if the documents in a particular box were cataloged and processed in such a way to ensure that they came from that box and location, the prosecution can use it as evidence for its case, as document order is not an important consideration.

Source: Case 9:23-cr-80101-AMC Document 522 Entered on FLSD Docket 05/03/2024. pp. 7-8

3. Preservation of Which Boxes Contained Documents With Classification Markings

The Government has taken steps to ensure that documents and placeholders remained within the same box as when they were seized, i.e., to prevent any movement of documents from one box to another. The FBI was present when an outside vendor scanned the documents in connection with the now-closed civil case (see, e.g., Trump v. United States, Case No. 22-81294- CIV-CANNON, ECF No. 91 at 2 (requiring the Government to inventory the property seized from Mar-a-Lago); id. at ECF No. 125 at 3 (requiring the Government to “make available to Plaintiff and the Special Master copies of all Seized Materials” in electronic format by October 13, 2022)), and the boxes were kept separate during that process. When the FBI created the inventories, each inventory team worked on a single box at a time, separated from other teams. And during defense counsel’s review, any boxes open at the same time (and any personnel reviewing those boxes) were kept separate from one another. In other words, there is a clear record of which boxes contained classified documents when seized, and this information has long been in the defense’s possession, as discussed infra at 9.

4. Location of Classified Documents Within Each Box

Since the boxes were seized and stored, appropriate personnel have had access to the boxes for several reasons, including to comply with orders issued by this Court in the civil proceedings noted above, for investigative purposes, and to facilitate the defendants’ review of the boxes. The inventories and scans created during the civil proceedings were later produced in discovery in this criminal case. Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.3 There are several possible explanations, including the above-described instances in which the boxes were accessed, as well as the size and shape of certain items in the boxes possibly leading to movement of items. For example, the boxes contain items smaller than standard paper such as index cards, books, and stationary, which shift easily when the boxes are carried, especially because many of the boxes are not full. Regardless of the explanation, as discussed below, where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way on Nauta’s ability to file a CIPA Section 5 notice.

© Copyright Original Source

-Sam

[Mountain Man]

That's not what I asked. What I asked was: if the law enforcement officers had wanted to plant evidence at the scene, why would they not catalog that evidence "in order"? If evidence was added after the initial cataloging, how did that evidence come to appear in the initial cataloging?

The point being that the insinuation — that some mishandled documents were probably or even possibly the result of intentional evidence tampering — doesn't hold up under even the lightest scrutiny.

Now if the prosecution actually lost evidence, it likely can't introduce those particular pieces of evidence at trial. Being spoiled for choice with the sheer number of classified documents cataloged, however, I don't see that as a particularly high hurdle to overcome.

-Sam

Your questions are good ones and expose just how sketchy this whole thing really is. Given the prosecution's confession, we can't say for certain what was or wasn't in those boxes, can we? It is common in court cases for mishandled evidence to be tossed out, and in this situation, that would destroy Smith's whole indictment, so, yeah, this is a very big deal despite your rather desperate attempts to downplay it.

And that is in addition to the other lesser but still significant hurdles Smith still has to overcome.

[Sam]

Your questions are good ones and expose just how sketchy this whole thing really is. Given the prosecution's confession, we can't say for certain what was or wasn't in those boxes, can we? It is common in court cases for mishandled evidence to be tossed out, and in this situation, that would destroy Smith's whole indictment, so, yeah, this is a very big deal despite your rather desperate attempts to downplay it.

And that is in addition to the other lesser but still significant hurdles Smith still has to overcome.

At best, you might get to the conclusion that some documents that can not be matched to a classification cover sheet were misplaced at some point during processing or review. That doesn't get you very far at all. The prosecution can certainly say, as it does in its response, that its initial gathering and processing methods have retained the security of the boxes and their contents — even if not those boxes' contents' exact order in all cases.

That's not sketchy, that's what happens in the process of handling evidence. Nothing alleged suggests that evidence has been planted or that critical evidence has been removed or tampered with. And these are only some of the boxes that the prosecution has to work with.

So it comes down to desperation: absent evidence of malfeasance, the defense is arguing that the shuffled order of some evidence should invalidate all evidence, even if that shuffling is actually inconsequential to the prosecution's case. And that's just not how these things work.

-Sam

[Mountain Man]

At best, you might get to the conclusion that some documents that can not be matched to a classification cover sheet were misplaced at some point during processing or review. That doesn't get you very far at all. The prosecution can certainly say, as it does in its response, that its initial gathering and processing methods have retained the security of the boxes and their contents — even if not those boxes' contents' exact order in all cases.

That's not sketchy, that's what happens in the process of handling evidence. Nothing alleged suggests that evidence has been planted or that critical evidence has been removed or tampered with. And these are only some of the boxes that the prosecution has to work with.

So it comes down to desperation: absent evidence of malfeasance, the defense is arguing that the shuffled order of some evidence should invalidate all evidence, even if that shuffling is actually inconsequential to the prosecution's case. And that's just not how these things work.

-Sam

It's what happens in the process of mishandling evidence. It's sloppy and introduces loads of reasonable doubt since it is now impossible for the prosecution to prove what was or wasn't in the boxes.

It's not for nothing that Judge Cannon has indefinitely suspended the trial.

[Sam]

It's what happens in the process of mishandling evidence. It's sloppy and introduces loads of reasonable doubt since it is now impossible for the prosecution to prove what was or wasn't in the boxes.

No, it isn't. The defense won't be able to demonstrate that material not initially cataloged found its way into a particular box and won't be able to demonstrate that the order of the boxes needed to be maintained. That classified documents were found within those boxes and can be matched with their index sheets is sufficient to prove that those document were present at the time of discovery.

It's not for nothing that Judge Cannon has indefinitely suspended the trial.

It's not for the reason you imply.

Source: Case 9:23-cr-80101-AMC Document 530 Entered on FLSD Docket 05/07/2024. pp. 4-5

Time under the Speedy Trial Act is therefore tolled—up to and including July 22, 2024—to permit adequate time for hearings and adjudication of substantive pretrial motions, discovery disputes, and CIPA issues, many of which present novel and difficult questions. 18 U.S.C. § 3161(h)(1)(D), (h)(7)(A)-(B) (directing judicial consideration of the needs of the proceeding, the complexity or unusual nature of the case, the need for adequate preparation for pretrial and trial proceedings, and the need to afford adequate time for effective preparation, accounting for the exercise of due diligence); [see also ECF Nos. 83, 154; ECF No. 215 p. 3].

© Copyright Original Source

-Sam

[seer]

That's not what I asked. What I asked was: if the law enforcement officers had wanted to plant evidence at the scene, why would they not catalog that evidence "in order"? If evidence was added after the initial cataloging, how did that evidence come to appear in the initial cataloging?

-Sam

Doesn't matter, obviously for this and other reasons, the Judge is concerned.

[Mountain Man]

No, it isn't. The defense won't be able to demonstrate that material not initially cataloged found its way into a particular box and won't be able to demonstrate that the order of the boxes needed to be maintained. That classified documents were found within those boxes and can be matched with their index sheets is sufficient to prove that those document were present at the time of discovery.



It's not for the reason you imply.

Source: Case 9:23-cr-80101-AMC Document 530 Entered on FLSD Docket 05/07/2024. pp. 4-5

Time under the Speedy Trial Act is therefore tolled—up to and including July 22, 2024—to permit adequate time for hearings and adjudication of substantive pretrial motions, discovery disputes, and CIPA issues, many of which present novel and difficult questions. 18 U.S.C. § 3161(h)(1)(D), (h)(7)(A)-(B) (directing judicial consideration of the needs of the proceeding, the complexity or unusual nature of the case, the need for adequate preparation for pretrial and trial proceedings, and the need to afford adequate time for effective preparation, accounting for the exercise of due diligence); [see also ECF Nos. 83, 154; ECF No. 215 p. 3].

© Copyright Original Source

-Sam

Sorry, but you can't have the prosecution confess to mishandling and tampering with a key piece of evidence and then just carry on with the trial as if nothing happened. It's the equivalent of documenting objects to be in one location at a crime scene only for the photographs to show them in a different location. Which represents the truth, the documentation, or the photographs? It's impossible to say. Even worse is the fact that the prosecution initially lied to the court about it and said there were no discrepancies, and that they had maintained proper custody of the evidence. Which begs the question: what else has the prosecution lied about? Sure, they can claim they are still able to confidently match documents to their placeholders, but can they really? It's now all fruit from a poison tree.

No, this isn't the only reason Judge Cannon put the brakes on the trial, but it is a very significant one (I suspect it falls under discovery disputes since the prosecution was not honest about the evidence that was in their possession). As one commenter said, the tables have turned, and for all intents and purposes, it is Jack Smith who is now on trial.

[seer]

No, this isn't the only reason Judge Cannon put the brakes on the trial, but it is a very significant one (I suspect it falls under discovery disputes since the prosecution was not honest about the evidence that was in their possession). As one commenter said, the tables have turned, and for all intents and purposes, it is Jack Smith who is now on trial.

It looks like this will not happen until after the election. A big win for Trump...Sammy boy must be heart broken....