While eyes remain mainly on Trump’s “hush money” case in New York City and his continual battles with Judge Merchan over the gag order placed on him in that case, a large development in the classified documents case brought against him in federal court in Florida might be even more momentous. There, special prosecutor Jack Smith’s case could be in trouble thanks to the FBI’s staged “top secret” photo of the documents.
As background, in a recent filing, the Department of Justice lead prosecutor in the case, Jay Bratt, a member of Jack Smith’s team, admitted that the FBI agents who raided Mar-a-Lago brought cover sheets that said “top secret” with them on the raid. He said that those sheets were used as placeholders for the classified documents found at the mansion.
Explaining that, Bratt said, in the court filing, “[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.”
However, the fact that the classified documents were packed away was not clear in the infamous photo that was released after the FBI raid in which documents were strewn about with bright red “classification” cover sheets. That photo was then picked up by media outlets and used to show that Trump was storing classified documents at Mar-a-Lago and to suggest he was doing so irresponsibly.
Further, the FBI appears to have incorrectly ordered the documents when it removed, segregated, and replaced the real documents with the “top secret” placeholders. Responding to such an allegation from Trump’s team, Bratt admitted as much, saying, “In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.”
Now, the Daily Caller reports, lawyers are saying that such a mix-up could potentially complicate the prosecution’s case against Trump. For example, John Malcolm, the Heritage Foundation’s president for the Insitute of Constitutional Government, a former deputy assistant general in the Department of Justice’s Criminal Division, told the Daily Caller, “It could [complicate the case]. I don’t know whether it will or not, but it certainly could.”
Mr. Malcom added that the Trump camp could argue that the mix-ups are evidence that they tampered with the evidence, saying, “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.”
Similarly, another lawyer, legal analyst and criminal defense attorney Philip Holloway, told the Daily Caller, “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.”
Continuing, Holloway added, “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. And if that viewer is a court, then that’s misleading a court and that’s against the law.”
Further, Mike Davis, a former law clerk for Supreme Court Justice Neil Gorsuch and the founder of the Article III project, explained to the Daily Caller that both Jack Smith and Jay Bratt could face serious repercussions if it turns out that they did somehow doctor the evidence and try to mislead the court and public.
He said, “Special counsel Jack Smith and his counselor Jay Bratt could face severe consequences if it is proven true that they doctored evidence and presented it to the court and the public knowing it was doctored. They could face discipline from the Justice Department’s Office of Professional Responsibility. They could face sanctions from Judge Cannon and they could face criminal prosecution for obstruction of justice.”
Featured image credit: By United States Department of Justice – This file has been extracted from another file, Public Domain, https://commons.wikimedia.org/w/index.php?curid=132849708
