OPINION:
Special counsel Jack Smith and Donald Trump’s aide-de-camp are debating in court filings what exactly is contained in those document boxes the FBI confiscated at Mar-a-Lago in 2022.
Waltine Nauta, the former White House valet turned Mar-a-Lago personal aide, wants the judge to grant more time to inspect the contents, which his lawyer suggests were tampered with.
The request is important, politically and legally.
Mr. Smith desperately wants to convict the presumptive Republican presidential nominee in a Fort Pierce, Florida, courtroom before the November election against President Biden, who also desperately wants Mr. Trump labeled a felon. (Mr. Biden said as much at the White House in 2022 when he declared “I’m making sure” Mr. Trump won’t be a candidate.)
In a May 1 court filing, Mr. Nauta’s attorney described the rush to judgment as follows: “The Special Counsel’s Office has incessantly sought deadlines in this matter that belay the readiness of the case.”
His argument worked. On May 7, District Judge Aileen M. Cannon scratched the impending deadline and did not set a new one.
In a 42-count indictment, Mr. Smith brought charges against Mr. Trump and Mr. Nauta last year.
The former president is accused of stuffing classified documents in boxes holding other papers, having them shipped to his Florida home and then stored in unsecured rooms such as a bathroom, ballroom and office. Mr. Trump then covered up his crimes, the indictment alleges.
Mr. Smith accuses Mr. Nauta, a Navy veteran, of moving boxes around the compound on Mr. Trump’s orders as part of a cover-up and then lying to investigators.
Mr. Nauta loaded and drove 15 boxes of documents, some top secret, to the National Archives, which then alerted the Justice Department, which opened a criminal investigation into Mr. Trump in March 2022.
Today, with scores of boxes inspected and exploited by the FBI, we come to the May 1 Nauta filing.
His attorney, Stanley E. Woodward Jr., did his own detective work and discovered papers out of sequence from their original order. Since his client is accused of moving boxes to conceal them, Mr. Woodward wants to know exactly what they contained at that time.
The FBI found 102 classified documents at Mar-a-Lago. It scanned all the boxes and removed papers with classified markings, replacing them with slipsheets.
Mr. Woodward told the judge that a slipsheet in “Box A-15” did not match the scanned one.
Another slipsheet does not appear where an FBI index says it does.
“Defense counsel cannot know for certain which documents produced in classified discovery were recovered from boxes in the Storage Room nor where those documents were found in the boxes,” Mr. Woodward’s filing states.
Thus, he said, he cannot yet identify what classified information would be disclosed at trial.
Mr. Woodward summed up his argument: “That documents with classification markings were stored within the boxes allegedly moved by Mr. Nauta prior to Trump Attorney 1’s Storage Room search is at the heart of the claim by the Special Counsel’s Office that Mr. Nauta sought to obstruct their investigation by ‘withholding’ and/or ‘concealing’ boxes. … Where those documents were stored in the boxes, and whether they were there at all, is unquestionably material to Mr. Nauta’s defense and necessary to his determination of what classified discovery he reasonably expects to disclose or cause to be disclosed at trial.”
Mr. Smith replied with a filing on May 3. As expected, he opposed any time extension. But he did acknowledge box discrepancies and admit misleading Judge Cannon.
“There are some boxes where the order of items within that box is not the same as in the associated scans,” Mr. Smith conceded.
Then, in a footnote, he admitted, “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court [Judge Cannon].”
The judge had asked at a hearing whether the boxes were now in their “original, intact form when seized.”
A prosecutor had told the judge there was only one change: Classified documents were removed and “placeholders” inserted.
Mr. Trump entered the fray on May 6, piggybacking on his former valet’s detective work. He filed a motion to lift the deadline based” he said, “on newly discovered evidence of discovery violations, misrepresentations and potential spoliation.”
The Biden Justice Department argues that Mr. Trump’s sloppiness in handling secret documents and alleged cover-up are greater crimes than Mr. Biden’s security violations.
But reading the Feb. 5 report by special counsel Robert Hur, who declined to charge Mr. Biden because a jury would view him as a kindly, forgetful old man, observers could conclude that both men were careless. And Mr. Trump as president, and not Mr. Biden, enjoyed absolute constitutional authority to declassify documents.
At one point, Mr. Hur wrote: “Mr. Biden was known to remove and keep classified material from his briefing books [at the White House] for future use, and his staff struggled–and sometimes failed–to retrieve these materials. And there was no procedure at all for tracking some of the classified material Mr. Biden received outside his briefing books.”
Mr. Hur added: “Mr. Biden also kept some material on his person or his briefcase that he carried between the West Wing and his residence. Staff did not go through the briefcase to retrieve or archive material from it.”
The then-vice president had Navy enlisted aides handling his classified documents at his official residence and in Delaware.
Mr. Hur wrote: “Their primary duties included cooking, cleaning and laundry for the vice president. Like military aides, they served as go-betweens for the delivery and retrieval of classified information due to their security clearances and proximity.
“Mr. Biden regularly received and reviewed classified material in the Naval Observatory and his Delaware home and left the material out where the naval enlisted aides collected it when he finished with it.”
In sum, Mr. Biden took (some would say stole) classified papers as vice president. They ended up in his Washington office and his Delaware home to help him write a million-dollar book. It amounts to mishandling classified material, just like Hillary Clinton. As secretary of state, she sent classified State Department material to her computer server at home in New York, and the material found its way to associates’ devices.
Of Democrats Mr. Biden and Mrs. Clinton and Republican Mr. Trump, only one was charged criminally.
• Rowan Scarborough is a columnist with The Washington Times.
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