Thread by @KatiePhang

Late last night, SC Jack Smith filed the Government's Response in Opposition to Trump's Motion to Dismiss Based on Spoliation of Evidence in Violation of Due Process.

Here, in the intro, we are reminded how Donald Trump handled some of our nation's most classified secrets:

Trump 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."

However, as SC asserts: "...at every stage the agents have maintained the integrity of each container in which the evidence was found, that is, box-to-box integrity."

Trump also "suggests (for the first time) that he may wish to argue that the classified documents were buried in the boxes and hard to see, or that the placement of classified documents near dated items shows that they were placed in the box long ago and may have been forgotten. But because the overall contents of each box have not changed, Trump can argue both of those things and has everything he needs to do so. Nothing has been lost, much less destroyed, and there has been no bad faith."

Trump's "defenses" have evolved and changed over time: "Over many months, Trump has claimed, among other things, that he deliberately declassified the documents, that the FBI planted them, and that he intentionally selected and sent the documents to Mar-a-Lago as his “personal records.”

But in the entire time since the indictment was returned against Trump, "Trump’s counsel have not once asked to review the boxes themselves" and Trump never asserted "any argument stemming from the precise order of the documents until filing this motion in 2024..."

Per SC: "the warrant and the protocol contemplated two scenarios in which an entire box would be seized. First, if the Filter Team encountered potentially privileged material in a box, the Filter Team would seize and segregate the box for later inspection. Second, if the Filter Team cleared a box—that is, reviewed it and found no privileged materials—it would pass the box to the Case Team, who would review the box for documents with classification markings and seize any box containing such material."

The Response then proceeds to describe in great and methodical detail how the search warrant was executed at MAL. It also sets forth the chain of custody.

Trump’s motion fails to assert "what the order of documents actually showed, instead relying entirely on speculation of what it might have shown." So, the legal analysis then requires bad faith to be shown for Trump to obtain dismissal or suppression.

The legal analysis also requires that Trump "show that the evidence was likely to significantly contribute to his defense."

“To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

In this case, "no physical evidence has been destroyed, and Trump does not and could not contend that the precise ordering of documents within boxes that he unquestionably possessed and were filled with his belongings could exonerate him."

Trump claims that he may have just "overlooked" classified documents because of where they were positioned in the boxes and that he may have put classified materials into boxes "years before" and forgotten they were in there before they went to MAL.

And HERE is where, once again, Trump's prior legal filings come to bite him:

"Trump’s filings in the Special Master litigation also undermine the position he takes here. There, Trump argued that 'personal documents, photographs, and items such as clothing are by definition not ‘contraband’ and thus may not be lawfully seized, and that any such items that were seized must be returned.'"

"His position there—that the Constitution prohibited agents from seizing or retaining any documents not marked classified—cannot be reconciled with his current claim that the Constitution required the agents not only to seize all non-classified documents in proximity to the classified documents, but to retain them in precisely the intra-box order in which they were found."

Trump cannot cite to any case that supports his position: "Trump is unable to cite a single case suggesting that a selective seizure or one in which the order of files or documents was to some extent not preserved constituted 'spoliation.'"

Throughout this litigation Trump has claimed that "he is entitled to dismissal because he made a conscious decision as president to designate classified documents as personal records and transfer them from the White House to Mar-a-Lago."

And HERE is where Trump's Truth Social posts come back to bite him:

"And before he latched onto the PRA as a defense, Trump made public statements that he had made a decision to declassify the documents, further casting doubt on the viability or predictability of a defense that he was ignorant of the boxes’ contents."

And here SCO explains that "There is no question that these were Trump’s boxes, and no one else’s. He collected their contents over time, he decided what was to be included, he kept them in his bedroom at the White House, he controlled their whereabouts, he helped pack some of them for Mar-a-Lago, he had them delivered to Mar-a-Lago, he directed Mar-a-Lago employees in mid-2021 to fix up the storage room so his boxes could be moved there, and agents searched them in the basement of his residence. And it is not as though agents discovered items in the boxes plainly belonging to someone else. To the contrary, the agents found boxes full of keepsakes valuable only to Trump."