One can be forgiven for not tracking each of the lawfare projects directed against former President Trump in detail, but stunning developments in Special Counsel Jack Smith’s criminal case charging Donald Trump with possession of classified documents demand attention.

We all remember the FBI dramatically raiding Trump’s private residence in Mar-a-Lago on Aug. 8, 2022. In all, the FBI reported taking 33 boxes. Critically, the inventory does not indicate when Trump received each box or who packed those boxes. Nor did the inventory document the order in which the boxes were packed. Based on new information, these lapses represent a serious problem for the government’s case.

Imagine the documents “discovered” by the FBI at Mar-A-Lago as a deck of cards. Smith criminally charged Trump with intentionally possessing a small number of those documents, which we can imagine represented by the ace of spades. Until recently, we assumed the former president took the entire deck of cards with him when he left the White House. It turns out, however, that the deck was cut. He shipped everything above the cut when he was president.  We’ve now learned that the Biden administration’s General Services Administration (GSA) sent the bottom of the deck to Mar-A-Lago after Trump left office. 

While it might have been natural to assume Trump intended to possess all the documents in the top half of the deck, everything below the cut was sent to him during the Biden administration. Unfortunately for Special Counsel Jack Smith, the FBI in its investigation apparently has shuffled the cards, making it more difficult to determine whether the ace of spades was in the boxes Trump took with him or in the documents sent by GSA during the Biden administration.

“Over the course of his presidency, TRUMP gathered newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials in cardboard boxes that he kept in the White House,” the indictment alleges. “Among the materials TRUMP stored in his boxes were hundreds of classified documents.”

So out of hundreds of boxes, the FBI found just a few hundred documents that could be considered classified. Thus, it’s not unfair to visualize this tiny minority of the total cache as a single card compared to the rest of the deck.

The FBI needs the court’s confidence that it handled the Mar-a-Lago evidence in good faith. But the FBI’s track record regarding Trump cases has been nothing short of disgraceful. It used deceptions to obtain “process” convictions against Trump campaign figures Lieutenant General Michael Flynn and George Papadopoulos. One of its lawyers pleaded guilty to falsifying an email to frame Trump campaign figure Carter Page as a Russian spy. And the FBI framed a sitting U.S. senator to rig an election.

As much as we want to believe the FBI would not be willing to abuse its power, its history of shenanigans against Trump puts its credibility into doubt. Thus, the “conspiracy theorists” immediately hypothesized that the Biden administration intentionally commingled classified documents into the pallets of documents they sent to former President Trump. 

The government, naturally, has pushed back on this claim while at the same time admitting:

Because these inventories and scans were created close in time to the seizure of the documents, they are the best evidence available of the order the documents were in when seized. That said, there are some boxes where the order of items within that box is not the same as in the associated scans.

But the government argues that it doesn’t matter, “where precisely within a box a classified document was stored at Mar-a-Lago.”

As Zachary Steiber noted in the Epoch Times, that statement contradicts what the government told the presiding judge. Steiber wrote:

When Judge Cannon during the hearing asked whether the boxes were “in their original, intact form as seized,” a prosecutor on the team said, “they are, with one exception; and that is that the classified documents have been removed and placeholders have been put in the documents.”

The Washington Post’s Philip Bump recently intervened to prop up Smith, arguing that if it was true the FBI shuffled the documents then:

the result would not be to exonerate Trump. The [GSA] boxes … were delivered to Mar-a-Lago in mid-September 2021. It wasn’t until January 2022 that material was shipped back to the National Archives after Trump (according to the indictment) personally went through the material.

Understanding that not everything had been returned, the Justice Department obtained a warrant demanding the return of anything with classification markings, regardless of whether they were still classified. Trump failed to do so. When the FBI searched Mar-a-Lago, it found material marked as classified in a storage room and Trump’s office.

So now the argument is that we don’t need to prove Trump intentionally took the documents, it’s enough to show he still had them after the National Archives asked for them back. In other words, the government is potentially prosecuting the inadvertent retention of classified documents—but only when the person is named Trump. We know this because when the same actions were taken by somebody named Clinton, Pence, or Biden, inadvertent retention of classified documents was not charged as a crime.

The government can no longer use the scanned images or the current state of the Mar-a-Lago documents to prove what it found during its raid. While prosecutors claim there was no mixing of documents among boxes, this has become harder to prove. They can only guess how the documents within the boxes were jumbled up in spite of “precautions” and “supervision” by FBI agents. If they can’t explain how the documents were shuffled within boxes, can they really say nothing got mixed up between the boxes? If we don’t know which documents came from which boxes or which boxes came from GSA, the deck remains hopelessly shuffled and the original situation can no longer be reconstructed. 

Bump, who previously tarnished his reputation by trying to debunk the Hunter Biden laptop story, further claimed that the boxes were packed and stored by Trump staffers in a transition office provided by the government in Crystal City, VA:

“[T]he Crystal City office was crammed with leftover stuff from the Trump White House with no apparent organization and little knowledge of what was even there,” our report noted. July 21 arrived, and the Crystal City office still had a bunch of stuff in it. Trump’s staff put material into boxes and boxes on pallets. Two pallets finally arrived at Mar-a-Lago on Sept. 14. The other four pallets (including two that had been repacked after a pallet became oversized) went to a nearby storage facility.

It should be noted that neither the indictment nor the government’s filing back-up Bump’s claim that Trump staff packed the GSA documents and sent them to former President Trump. If the government could prove the Trump people packed up the GSA boxes, it might have been claimed in either the indictment or this filing. Further, we have the additional complication that somebody repacked four pallets of these documents for shipping. Those people may need to be tracked down to nail down the chain of custody. Again, with the FBI’s history of framing people to get Trump, every gap in the chain of custody looks suspicious.

At best, the government is going to have to waste valuable resources rehabilitating the compromised chain of evidence and explaining why its lapses don’t sink the case. Short of that, the case may just have disintegrated.