Jack Smith Rips Into Trump on Spoliation

Remember when Jack Smith asked for permission to exceed the page limit in his response to Trump's motion to dismiss the Mar a Lago indictment on spoliation of evidence and due process violations?

Recently, and for the first time, Trump raised the specter of spoliation of evidence by asking Judge Cannon to dismiss his case on the grounds that the order of the documents in the boxes had been tampered with or ignored by Special Counsel. Based on the fact that the order had been disrupted and that Special Counsel failed to hand over notes from a meeting where the order of the documents was discusses, Trump had accused the government of violating his due process rights.

Jack Smith’s office asked for permission to exceed the page limit in their response, which Judge Cannon granted. And late Monday night, the government filed their 33-page response. Jay Bratt and David Harbach pull no punches.

Defendant Trump does not offer the Court a single case at any level, at any time, from anywhere in the country, in which the disruption of the precise order of documents gathered in the execution of a search warrant provided support for a spoliation claim. In the roughly four decades since the Supreme Court set the applicable standard, the Eleventh Circuit has never found that a defendant’s due process rights were violated by the government’s loss or destruction of evidence. Despite this Trump asks this Court not only to be the first to find spoliation on such benign facts, but also to employ the most drastic sanction available—dismissal of the superseding indictment. His motion is meritless, and the Court should reject it.

Nice mention of the 11th circuit there.

The government then goes on to describe the carelessness and disrespect Trump showed to our national secrets:

Trump personally chose to keep documents containing some of the nation’s most highly guarded secrets in cardboard boxes along with a collection of other personally chosen keepsakes of various sizes and shapes from his presidency—newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others. At the end of his presidency, he 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. After they landed in stacks in the storage room, several boxes fell and splayed their contents on the floor; and boxes were moved to Trump’s residence on more than one occasion so he could review and pick through them.

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.

DoJ then describes all the times Trump and his accomplices moved boxes in the nearly 2 years prior to the execution of the lawful search warrant, reminding the court that while some items in each box may have shifted due to size and contents - that each box still contained every document that was in it at the time of the search.

Something I found interesting was Special Counsel’s rebuttal to Trump’s claim that the FBI tried to “turn off the CCTV” cameras during the search:

At or about 8:59 a.m. on August 8, 2022, the FBI team entered the Mar-a-Lago premises. At approximately 9:14 a.m., DOJ attorney Bratt attempted unsuccessfully to reach Trump Attorney 1 by phone. At approximately 9:36 a.m., Bratt spoke by telephone with Trump Attorney 1. At approximately 9:55 a.m., the CCTV servers were turned off to prevent recording, at the request of the FBI, out of concern for agent safety. At approximately 10:20 a.m., recording resumed, at the direction of Trump attorneys. But during the time the recording function was off, the cameras continued to display a live feed, and some Trump Organization personnel who had access to the network feed monitored it live. At approximately 10:33 a.m., the FBI initiated the search.

Yes, you read that right. A Trump attorney was contacted before the search started, the search was recorded, and Trump personnel watched it live.

Furthermore, there were several agents that were part of the filter team that took extensive steps to make sure that the boxes were searched one at a time, and that nothing made its way from one box to another. That’s important because Trump contends that the dates of the items in the boxes co-mingled with the classified documents show when the box was packed. But given that 1) each box is self-contained so that doesn’t really matter, 2) Nauta and his buddies moved the boxes multiple times and Trump picked through them, and 3) there’s photographic evidence of some boxes spilled all over the floor well before the FBI even showed up - Trump’s arguments about documents being out of order is moot (and falls well short of any “bad faith” effort to spoil evidence.)

Next, the government explains that after the filter review for privileged information, and after the case team review for classified documents, and after the boxes were flown to the FBI Washington Field Office in DC, the boxes were scanned ahead of the Special Master litigation to preserve the order of documents in the boxes.

Jack Smith then moves on to applicable law:

To establish a due process violation based on the destruction or loss of evidence, a criminal defendant must make two showings. First, he “‘must show that the evidence was likely to significantly contribute to his defense.’” Second, “[t]he defendant must also demonstrate that the government acted in bad faith.” And Jack Smith reminds Judge Cannon that the 11th Circuit has held that even a remedy of spoliation instruction requires proof of bad faith (meaning that Trump is asking for a dismissal, not for the court to instruct the government to fix the spoliation - but even that lesser remedy requires a showing of bad faith.)

And that’s where Trump runs into a problem: In the roughly four decades since Trombetta and Youngblood, the Eleventh Circuit has never found that a defendant’s due process rights were violated by the government’s destruction or loss of evidence.12 Here, Trump has failed to make either showing necessary to establish a due process violation, and he cites no case finding spoliation in circumstances anywhere close to this case, where nothing has been destroyed and the claim is based only on agents not maintaining the precise order of documents in a box whose ownership is uncontested.

That “ownership is uncontested” bit is a dig at Cannon because that’s one of the key reasons why the 11th circuit vacated her Special Master bullshit: because the government owns this stuff. Not Trump.

Additionally, the government explains that Trump fails to explain exactly why the precise order of documents within each box is somehow exculpatory. Since no evidence was destroyed, Trump offered two reasons the order is important:

1. If documents marked classified “were not positioned in visible locations at the tops of boxes,” that could support a claim that he may have simply overlooked such documents.

2. If documents marked classified were found in close proximity to “items such as newspapers and letters dated long before” his term of office ended, that could support an inference that he may have placed them in boxes years before and therefore forgotten that some of the nation’s most sensitive secrets were in the boxes before he sent them to Mar-a-Lago.

That’s really funny because that’s basically what Biden did and why he wasn’t charged. The problem with Trump’s arguments here is that since box-to-box integrity was maintained, anything out of order would only be out of order to a very slight degree.

And per usual, Trump’s previous arguments in other filings contradict his argument here. Here, he is arguing that the Constitution required the agents not only to seize all non-classified documents in proximity to the classified ones and maintain their order. But in his Special Master filings, he argued the non-classified stuff could not be lawfully seized. Whoops! lol

Indeed, if the agents had followed the procedures that Trump claimed at the time were constitutionally required—taking only the classified documents and leaving everything else behind—there could well be no evidence of which documents were in the same box with a particular classified document, much less evidence of whether a particular document or personal effect was one inch or two inches away from a classified document.

Maybe it’s because it’s late, but that cracks me up.

All of that means Trump is unable to show that the precise order of the documents would significantly contribute to his defense. So the first part of the two-pronged test fails. As for the second part, demonstrating that the government acted in bad faith. Trump says that because the filter team didn’t even try to preserve the order of the documents during the search, that indicates that the DoJ showed bad faith.

But as Trump’s exhibits themselves demonstrate, two Filter Team agents stated they kept the box contents in order to the best of their ability, one said it was not practical under the circumstances to maintain the order, and one said s/he was not focused on maintaining the order, but even if s/he had been, it would have been impossible to do so. That the agents did the best they could under the circumstances does not mean that they “made no effort” or “did not even try” to preserve the order of documents. Trump has no evidence of bad faith.

That brings us to Trump’s final argument: that the government violated its discovery obligations by failing to hand over notes of a meeting where they discussed the order of the documents in the boxes - thus violating Trump’s due process rights.

Trump wrongly suggests that prosecutors breach the Justice Manual unless they review and identify every item that is potentially discoverable “at the outset of [the] case.” To the contrary, the Justice Manual, the case law, and Rule 16(c), make clear that the Government’s discovery obligations are continuing, and the Government has continued to review and produce additional materials as required, including potentially exculpatory information and early Jencks Act materials. The agent notes on which Trump relies here were supposed to be on a disc whose contents were produced to the defense in February 2024—months before the defendants raised the precise ordering of the documents in the boxes as a defense—but the notes were not produced in the February production due to a technical problem in the file transfer process that was not discovered until May. In any event, after the defendants made their requests, the Government discovered the error and produced the notes well in advance of trial and in full compliance with the Government’s obligations.

This is precisely the point I brought up in the most recent episode of the Jack podcast. Discovery is still ongoing, so DoJ didn’t violate discovery obligations or Trump’s due process rights.

Special Counsel ends their response with this:

The advance planning of these steps, their execution in fact, and the litany of additional protocols and precautions that were taken in connection with this search—labeling each and every box in the storage room prior to the search in order to be able to identify from which box each seized item came; employing later, offsite, careful review of potentially privileged materials before releasing any to the Case Team; preserving box-to-box integrity; and taking photographs of the searched areas both pre-search and post-search—are all utterly inconsistent with bad faith. In short, this search was conducted lawfully, professionally, efficiently, and respectfully. Trump proffers no evidence of bad faith, because there was none. For the foregoing reasons, Trump’s motion should be denied without a hearing.

Andy and I will discuss all of this on the next episode of the Jack podcast. If I had to guess, Cannon will probably set a hearing for this motion, and then fail to make a solid decision on it.

Thanks for reading my late-night thoughts on this one! I’ll link the full filing as soon as it’s up on court listener.

~AG