We want to try something a little different this week and delve into a single motion filed in Donald Trump’s classified documents case in Florida. We thought it might be useful to explore how it informs the larger legal and political strategies Trump has used trin all of the criminal matters he is facing.
The motion, filed on Monday night, makes a weighty accusation.
It claims that prosecutors working for the special counsel, Jack Smith, who brought the indictment, failed to properly preserve the evidence at the heart of the case: the 45 boxes of documents the F.B.I. seized two years ago during a search of Mar-a-Lago, Trump’s private club and residence in Florida.
Trump’s lawyers also made a big request of Judge Aileen Cannon, who is handling the case. They asked her to dismiss the charges altogether or, barring that, to do something that would have the same effect: toss out the evidence found during the Mar-a-Lago search, including the trove of 32 classified documents that Trump has been charged with removing from the White House.
In the broadest sense, the motion takes aim not at the strength of the charges Trump is facing, but rather at the integrity of the underlying inquiry.
It’s an effort to knock out the foundations of the case and, as such, is part of a barrage of similar motions that his lawyers have launched against the investigation and the investigators.
Trump has for decades conflated legal problems with public relations fights. And that approach is one his entire legal apparatus appears to have embraced since he was first indicted in New York in March 2023.
The judges his lawyers have dealt with over the months have had varying levels of tolerance for all of this, with Cannon granting them significant leeway.
Politics in the courtroom
Adopting the tactics of political warfare, Trump and his lawyers have often impugned the motives of his opponents in the courtroom much like the candidate has gone after his opponents on the campaign trail.
They’ve also repeatedly sought to tar the legal system as being rigged against him, echoing his claims about the voting system in the last election.
After his conviction last month on 34 felony charges in Manhattan, Trump lashed out at Alvin Bragg, the district attorney who filed the case, and claimed that President Biden was the secret hand behind the prosecution. He also questioned the fairness of the judge and jury, effectively putting the trial itself on trial.
The documents case has seen a lot of this sort of fusing of law and politics.
In recent weeks, Trump’s lawyers have claimed that the court-approved search of Mar-a-Lago was an “illegal raid” meant to damage his political prospects. And they’ve accused Smith of filing the case to keep Trump from campaigning and in so doing to “deprive the American people” of his candidacy.
There’s similarly misleading language in the lawyers’ latest filing, which refers to the documents case as part of “President Biden’s election-interference mission” even though Smith has day-to-day independence from the Justice Department.
But when you drill down on what Trump’s lawyers are actually accusing prosecutors of having done, it’s relatively narrow.
Their claim is not that evidence was damaged or went missing from the boxes seized at Mar-a-Lago; it’s not even that evidence was moved from box to box.
The claim is that the order of individual items inside each of the boxes has shifted slightly over time.
That matters, the lawyers say, because at some point down the road, Trump might seek to defend himself by claiming he had no idea that there were highly classified intelligence papers tossed among the clutter of personal effects, some of which had been sitting in the boxes from well before the end of his term.
The lawyers have suggested it would indicate his lack of criminal intent if Trump could show that a secret battle plan was lying, say, near a magazine article from 2018. But that defense, whatever it broader merits, could conceivably still work even if, as everyone seems to agree, the contents of the boxes never changed, only the order of the items inside them.
Trump’s own filing contains records of interviews with some of the F.B.I. agents who performed the search. And those suggest that while the bureau took every precaution to secure the integrity of each box on its own, it was all but impossible to keep the Trumpian jumble of stuff inside them stacked up in precisely the same way after the search as before it.
“Box to box integrity a priority,” notes from one of the interviews read. “Did not focus on maintaining order nor did think could even if was focused on it.”
“‘To best of my ability’ kept contents in order,” notes from another interview said. “Impossible to maintain exact order. Newspapers, Post It notes, golf balls etc.”
Demonstrating the blurred line between the political and the legal, Trump’s campaign released a statement about the motion on Tuesday, calling it “powerful” and noting that “Deranged Jack Smith” and his “Thugs” had committed “blatant Evidence Tampering” — words that never actually appeared in the filing being described.
The statement seemed designed, at least in part, to provoke outrage among the former president’s base. That’s another way in which Trump has sought to use his cases to his advantage.
Your questions
We’re asking readers what they’d like to know about the Trump cases: the charges, the procedure, the important players or anything else. You can send us your question by filling out this form.
How does a felon get security clearance to be president if he were to win the election? — Kathy McCloskey, Washington, D.C.
Alan: Believe or not, presidents don’t go through the normal process of being vetted with security checks and receive actual security clearances. The office of the presidency itself comes with the power to review classified materials without the normal procedures that ordinary people have to go through.
What else to watch
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In the next few weeks, we should get recommendations from Trump’s lawyers and Manhattan prosecutors about what sentence he should face after he was found guilty of falsifying business records to cover up a sex scandal surrounding the 2016 election. The big question is: Will prosecutors ask for jail time?
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We’re also getting close to the Supreme Court issuing a landmark decision on presidential immunity. That decision, which could come at anytime in the next few weeks, will help determine whether Trump goes to trial on charges of plotting to overturn the 2020 election sooner rather than later.
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The Supreme Court is also expected to rule soon on whether federal prosecutors properly used an obstruction charge against hundreds of Jan. 6 rioters. If the court were to strike down use of the charge, it could also eliminate some elements of the election subversion case against Trump.
Where does each criminal case stand?
Trump is at the center of four separate criminal investigations, at both the state and federal levels, into matters related to his business and political careers. Here is where each case stands.
