by Jeff Childers
CNN ran a tearful story yesterday headlined, “Federal judge indefinitely postpones Trump classified documents trial.”
This case, arising from FBI’s dramatic raid on Mar-a-Lago, is one of the three other criminal cases pending against Trump, besides the Stormy Daniels’ mischaracterized expenses case. The classified documents case has long been considered the most serious case, the case offering liberals their best hopes for undemocratically derailing Trump’s presidential ambitions.
But some remarkable issues have arisen with the evidence. CNN’s article was light on details, but reported the most important development to CNN: Judge Aileen Cannon canceled the current trial date — without setting a new one — since she’s facing eight substantial new motions she has yet to rule on. To give you an idea how substantial, one of the motions is scheduled for a three-day hearing.
But the issue of FBI evidence tampering might have been the most interesting out of a raft of very interesting Trump team issues. Do you remember this widely-circulated picture
The photo — unimaginably leaked by the DOJ — was one of the pictures allegedly taken by the FBI during the Mar-a-Lago raid. Many observers, including me, opined it looked like FBI drama queens had deliberately staged the documents, dramatically spreading them out on the floor, intending to manufacture a media picture for later leaking.
Either way, that picture did the job. On August 31, 2022, for example, Washington Post fact checker Philip Bump explained to readers that the “question of whether Trump had classified material with him at his Mar-a-Lago resort has captured the public’s attention. The photo published by the government appears to answer that question quite affirmatively.”
It turns out those of us who smelled an FBI rat were right, as the government has recently been reluctantly forced to admit. At least, we were right that the documents were not originally found on Trump’s office floor. Rather, they were neatly stored in secured bankers’ boxes. The FBI altered the evidence by throwing it all over the floor helter-skelter, putting stupid tape measures under it to look official, and adding a silly evidence tag (“2A”), like they were marking the location where the fatal bullet casing was found.
But it turns out it was so much worse. Thanks to heroic work by Trump’s lawyers, and following several stern orders from Judge Cannon forcing the government to respond to basic discovery requests, we’ve now learned that the documents in the picture aren’t even the documents in the picture.
What I mean is, the FBI has now admitted that the documents seen splayed on the floor are dummies, props. At the time the picture was taken, the original classified documents had already been secured and removed. So the FBI took some other random papers and — get this — put classified cover sheets on them and then posed those dummy documents on the floor. Picture time.
Not only weren’t the documents found on the floor, and not only weren’t the documents in the picture the actual documents, but the official-looking classified document cover sheets as seen in the photo were totally fake. There were no classified cover sheets on any of the original documents. It was all made up. Here’s how the government warily tried to explain the operation in one of its recent filings:
“[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.”
And now, they’ve even lost track of at least some of the documents and their fabricated placeholders. The government carefully admitted:
“In many but not all instances, the FBI was able to determine which document with classification markings corresponded to a particular placeholder sheet.”
“In many instances.” But not all. Worse for the government, over the last year or so, its lawyers have repeatedly insisted that the bankers’ boxes were preserved exactly in their original conditions. But the government’s latest filings and admissions indicate those repeated representations to the court were false.
It’s not a mere technicality. Trump’s lawyers have offered various legitimate reasons why the FBI’s poor handling of the evidence has fatally compromised the case. For one thing, they’d intended to show that everything in the boxes had been packed in sequential date order, proving the documents were undisturbed from when the National Archives staff originally packed them for Trump to take with him.
But now the documents are all mixed up, not even in the same bankers’ boxes in which they began. Nobody knows anymore.
So the government now faces two new, potentially fatal problems: the evidence tampering (or at least, evidence negligence), and lying to the court. And the CNN article mentioned, this is just one of the many complex and potentially novel issues now confronting the government’s case.
Trump’s team seems to be pursuing a litigation strategy that, for lack of a proper term, I will call “saturation.” In important, big-dollar cases where my defendant clients faced large, well-funded institutional opponents (usually banks, in my cases), I have successfully used the saturation strategy many times.
It works like this: the lawyers for the defense become super granular. They fly-specked every document, every contract, every email, every everything hunting any viable legal theory. (You might think this happens in every case, but it doesn’t. Most cases can’t justify the extraordinary expense, and good lawyers simply don’t have time to work more than one saturation case at a time.)
Thanks to human fallibility, and the fabulous fountains of fate, there are always issue nuggets that can be mined from the documents and the other evidence. Always. And each time a viable new issue is found, the lawyers will develop the issue and use it to attack the prosecution’s case. After a while, the defense has developed multiple separate and stand-alone defense theories, any one of which could be the one that wins the case.
Done properly, the defense will be sitting on a sort of legal theory gold mine. The low chances of winning each individual issue add up to something more that all together is more of a certainty of a win. You almost never lose everything, and if you only have to win something, it adds up to pretty good odds.
Through skillful work, it looks like Trump’s lawyers may have reached the legal saturation point in this case, where the accumulated weight of all the defense’s viable issues will inevitably crush the prosecution. It’s terrific lawyering. Even these tampered evidence issues, which seem obvious once they have been laid out, only became viable defenses due to bulldogging tenacity in discovery disputes and microscopic document analysis by Trump’s legal team.
For this update, I relied extensively on Julie Kelly’s latest Substack. She’s been doing yeoman’s work following this incredibly busy case, where all of the real legal action seems to be happening.
Is it too late for Jerk Smear to deploy the Stormy Daniels weapon?