(CNN) — Lawyers for former President Donald Trump have found a new reason to seek to delay the classified documents case: Some of those found in boxes at Mar-a-Lago have been spoiled since FBI agents seized them two years ago. .
Trump’s lawyers indicated in a filing Monday that the change of documents inside the boxes in evidence could also be grounds for the case to be dismissed. They said they would file a motion to dismiss if the prosecution “cannot reliably prove how it seized and handled key evidence in the case, which will be a central issue in any trial.”
In a brief order issued Monday, Federal Judge Aileen Cannon suspended the deadline the defendants had this week to present certain preliminary evidence and said a follow-up order would be issued that would reset the deadlines and pretrial hearings. The order did not give further explanations.
Special Prosecutor Jack Smith’s office acknowledged in a recent court filing that, in at least some of the boxes obtained in the Mar-a-Lago search, the documents are now in a different order within each box than when the Department of Justice Justice took custody of the boxes for the first time.
“President Trump and his counsel are deeply troubled by learning these facts approximately 11 months after charges were filed in this case,” Trump’s lawyers wrote in the filing. The revelations from Smith’s office “raise questions about the investigation and handling of evidence that must be addressed before the matter proceeds.”
Trump was accused of mishandling national defense information after the FBI seized in August 2022 boxes from his Florida rest home containing documents with classified markings mixed with other documents and personal effects of the former president. Trump and his co-defendants have pleaded not guilty.
Prosecutors noted in their court filing that the boxes have been the subject of several reviews, including one requested by Trump. Cannon appointed a special master at Trump’s behest in 2022 to review the seized documents and determine what should be withheld from investigators due to privilege issues.
The order of the documents could become critical to the defense of Trump and his co-defendants. For now, defense attorneys are asking for delays, arguing that the revelation has disrupted their preparations for the trial.
In Monday’s filing, Trump’s lawyers say they relied on the order of the classified material inside the boxes when they reviewed them as part of the discovery process. At the time, lawyers say classified material was “buried inside the boxes,” which they say could help exonerate Trump of any wrongdoing.
The attorneys also say that “it was our understanding” that the classified material was found alongside items that “provided favorable context” around when the document was placed in the box, according to the filing.
When the boxes were first seized in 2022, a team of Justice Department lawyers separate from the investigative team reviewed them for confidential material. Then, as part of another review by the researchers, the classified documents inside the boxes were removed and exchanged for a placeholder sheet. And as part of the special process ordered by Cannon, the contents of the boxes were scanned so that inventories of their contents could be created.
According to prosecutors, the documents and reservation sheets were kept in the boxes in which they were found, but “in some boxes, the order of the items does not match that of the corresponding scans.”
Prosecutors acknowledged the discrepancy in response to a request last week by Walt Nauta, Trump’s co-defendant, to postpone certain pretrial deadlines.
The defendants were required to tell the court by Thursday what classified material they intended to use as part of their defense, but Nauta and Trump argued that they could not meet that deadline due to shoddy evidence.
Nauta has previously argued that prosecutors did not sufficiently prove that the boxes he is accused of removing from a Mar-a-Lago warehouse contained the classified documents sought by investigators in a May 2022 subpoena.
Special Counsel Smith has argued that Nauta’s ability to meet this week’s deadline – which Cannon has since withdrawn – should not be affected by the fact that some of the documents have become disorganized inside each box.
A spokesman for Smith’s office declined to comment further.
