DJT - SDFL - MTD - Spoliation - 6-10-24 - #612

Case 9:23-cr-80101-AMC Document 612 Entered on FLSD Docket 06/10/2024 Page 1 of 29
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
UNITED STATES OF AMERICA,
vs. Case No. 23-80101-CR

CANNON/REINHART
DONALD J. TRUMP, et al.,
Defendants.
PRESIDENT DONALD J. TRUMP’S MOTION TO DISMISS BASED ON

SPOLIATION OF EVIDENCE IN VIOLATION OF DUE PROCESS
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 3
I. The Raid At Mar-A-Lago ............................................................................................. 3
II. Relevant Proceedings in Trump v. United States .......................................................... 5
III. Post-Indictment Interviews Of The Filter Team ........................................................... 6
IV. President Trump’s Discovery Demands ....................................................................... 6
V. Misrepresentations By The Special Counsel’s Office .................................................. 7
VI. Untimely Disclosures By The Special Counsel’s Office .............................................. 8
VII. President Trump’s Additional Discovery Demands ................................................... 11
VIII. The May 2024 Filter Team Interviews By The Special Counsel’s Office ................. 11
IX. The May 2024 Untimely Disclosures By The Special Counsel’s Office ................... 12
APPLICABLE LAW .................................................................................................................... 14
DISCUSSION ............................................................................................................................... 16
I. The Prosecution Team Failed To Preserve Material, Exculpatory Evidence ............. 16
II. The Prosecution Team Failed To Preserve Potentially Useful Evidence ................... 19
III. The Prosecution Team Acted In Bad Faith ................................................................. 20
IV. The Bad-Faith Inquiry Requires Complete Disclosures Of Animus .......................... 21
V. The Untimely Disclosures Further Demonstrate That The Special Counsel’s Office Is
Not In Compliance With Their Discovery Obligations .............................................. 22
CONCLUSION ............................................................................................................................. 25
ii
INTRODUCTION
President Donald J. Trump respectfully submits this motion to dismiss the Superseding
Indictment, and to suppress all evidence seized in connection with the August 2022 raid at Mar-a-
Lago, based on the FBI’s destruction of important exculpatory evidence relating to the locations
of the allegedly classified documents at issue.1
The prosecution team destroyed exculpatory evidence supporting one of the most basic
defenses available to President Trump in response to the politically motivated charges in this case.
The Special Counsel’s Office has wrongfully alleged that President Trump was aware of the
contents of boxes in August 2022, where those boxes were packed by others in the White House
and moved to Florida in January 2021. The fact that the allegedly classified documents were
buried in boxes and comingled with President Trump’s personal effects from his first term in office
strongly supported the defense argument that he lacked knowledge and culpable criminal intent
with respect to the documents at issue. Any proximity between allegedly classified documents
and other dated materials from years before the move, such as letters and newspapers, would have
further strengthened this argument. The prosecution team’s instructions to agents who executed
the raid essentially acknowledged these propositions, and directed the agents to take care to
document the location of both seized items and potentially privileged materials.
However, the agents disregarded those instructions. The government was more interested
in staging—and leaking—manipulated photographs to the press than preserving key exculpatory
evidence that has now been lost forever. Trump, ECF No. 48-1.2 The agents did not maintain the
1
On May 31, 2024, President Trump sought leave to file this motion, ECF No. 593 at 2, and the
timing is due to a series of untimely disclosures by the Special Counsel’s Office of exculpatory
information and discoverable evidence that began with a May 3, 2024 public filing, ECF No. 522.
2
References to “Trump” are to public filings in Trump v. United States, No. 22 Civ. 81294 (S.D.
Fla.).
1
order of the documents, and they did not take photographs that would have served as alternative
evidence of the documents’ sequence in each box. In July 2023, the agents disclosed this fact
during a meeting with prosecutors from the Special Counsel’s Office and the U.S. Attorney’s
Office for the Southern District of Florida (“USAO-SDFL”). But the Office did not timely disclose
the notes from that meeting for almost a full year. Indeed, they persisted in that suppression,
notwithstanding that the notes were responsive to an October 2023 discovery request from
President Trump, while urging the Court to rush to trial based on false assurances that they were
in compliance with their discovery obligations.
In hearings during March and April 2024, the Special Counsel’s Office misrepresented to
the Court that the pre-raid sequence of the documents was intact. Only after an evidence inspection
by counsel for President Trump’s co-defendants revealed the extent of the problem did the Office
disclose in a May 3, 2024 filing that the documents were not intact as had been claimed previously.
Vague language in that submission and corresponding additional discovery demands from
President Trump caused these due process violations to further unravel.
The Constitution required far more than the Special Counsel’s Office and the FBI were
willing to do. That is evident from the spoliation at issue herein, as well as from separate pretrial
motions seeking to compel other important discovery, suppress unlawfully seized evidence,
remedy additional prosecutorial misconduct, enforce the presidential immunity doctrine and the
Appointments and Appropriations Clauses, and dismiss the charges on the basis of selective and
vindictive prosecution. To date, the Office’s discovery obligations and ethical requirements have
taken a back seat to President Biden’s election-interference mission. That must stop. For the
reasons set forth below, the Court should dismiss the Superseding Indictment, suppress evidence
2
seized during the Mar-a-Lago raid, and conduct such fact-finding as is necessary to shed light on
the misconduct by those responsible for destroying exculpatory evidence.
BACKGROUND
I. The Raid At Mar-A-Lago
On August 8, 2022, the FBI carried out an unprecedented raid targeting the residence and
office of a former President of the United States at Mar-a-Lago. As the Court is aware, the
participants in the raid relied on a search warrant that is already the subject of a multi-faceted
motion to suppress. See ECF No. 566.
Prior to the raid, the government’s investigative team designated a “Filter Team” that
consisted of three attorneys—one from DOJ’s National Security Division, and two from the
USAO-SDFL—as well as a Squad Supervisor and four Special Agents from the FBI’s Miami Field
Division. See Trump, ECF No. 40 at 2-3. This Filter Team was responsible for the “initial search
and review” of President Trump’s office at Mar-a-Lago (the “45 Office”), as well as the Storage
Room referenced in the Superseding Indictment. Id. at 3; see also ECF No. 85 ¶ 90. Thus, the
Filter Team was the tip of the spear for the government’s raid and, as far as the defense can tell,
responsible for the initial search of every box, desk drawer, and other container in the 45 Office
and the Storage Room that the government unlawfully targeted.
Prior to the raid, one of the Filter Team attorneys provided detailed instructions to the Filter
Team agents in a memorandum and via email. See Ex. 1 at USA-01291482.3 The instructions
included the following:
3
The exhibits submitted in connection with this motion have been redacted in a manner consistent
with the Court’s prior rulings regarding sealing of judicial documents. Although the Court’s
deadlines and the press of business may not always allow pre-filing conferral on specific
redactions, we disclosed our proposed redactions to the Special Counsel’s Office on June 8, 2024
as part of the conferral process for this motion.
3
If, during the search of the 45 Office, the filter team identifies a document marked as
classified that is comingled in a container with potentially privileged materials, the filter
team should document the location of the classified document, photograph it and the
location where it was found, including with the comingled documents and container, and
then provide the classified document to the case team so that it can be handled
appropriately.
Id. at USA-01291483 (emphasis added).
The instructions also directed the Filter Team to be “mindful” of the fact that
photographs taken by [the FBI’s Evidence Response Team] ERT of any responsive
materials in the 45 Office, including the location where the materials were found and any
other comingled materials, may also contain potentially privileged materials.
Id. (emphasis added).
According to the government’s Return associated with the raid, the FBI seized 39 “boxes
and/or sets of documents [that] contained comingled items described in Attachment B” to the
warrant, and six additional “boxes and/or sets of documents” that “contained potentially privileged
items comingled with items described in Attachment B” to the warrant. Ex. 2. The Filter Team
was responsible for the initial review of each of these boxes, as well as unseized items, on-site at
Mar-a-Lago. However, as discussed in more detail below, notwithstanding the foregoing
instructions, the Filter Team made little if any effort to document the location of seized items
within a box or to maintain the order of documents within each box that they searched.
The FBI transported the 45 seized “boxes and/or sets of documents” to Washington, D.C.
on the morning of August 9, 2022. That afternoon, in an email that illustrates immediate concern
about the Filter Team’s failure to follow the instructions regarding documenting the location of
seized items, an agent from the FBI’s Washington Field Office sent an email asking one of the
Filter Team agents to “Please call me . . . asap” via “[Instant Messenger] IM or desk [phone].” Ex.
3. The Miami agent responded that another member of the Filter Team had “assisted me with what
4
we discussed,” and that the other agent “also has more updated information concerning where the
documents were allegedly located.” Id.
II. Relevant Proceedings in Trump v. United States
On August 22, 2022, President Trump initiated the Trump matter in the Southern District
of Florida, in an effort to protect his rights following the unprecedented raid of Mar-a-Lago.
In an August 30, 2022 responsive filing signed by, among others, Jay Bratt, the government
made at least three arguments that impliedly acknowledged the relevance of the location of
documents within the seized boxes. See Trump, ECF No. 48. First, the government argued that
the “location” of passports the FBI unlawfully seized during the raid constituted “relevant evidence
in an investigation of unauthorized retention and mishandling of national defense information.”
Id. at 12 n.6. Second, the government argued that “[e]vidence of commingling personal effects
with documents bearing classification markings is relevant evidence of the statutory offenses under
investigation.” Id. at 16. Third, the government cited United States v. Wuagneux, for the
proposition that it was “reasonable for the agents to remove intact files” from Mar-a-Lago in
connection with the raid. Id. at 17 (citing 683 F.2d 1343, 1353 (11th Cir. 1982) (emphasis added)).
Also on August 30, 2022, attorneys from the Filter Team filed a report with the Court. See
Trump, ECF No. 40. Despite detailed discussion of search procedures, the report did not describe
the pre-raid instructions to “document” the location of seized evidence. Nor did the Filter Team’s
report disclose that the agents had failed to maintain the order of the documents as they rummaged
through boxes at Mar-a-Lago, much less that certain of the agents regarded the instructions from
the attorneys on the Filter Team to have been “impossible” to comply with.
In October 2022, in response to an order from the Court and instructions from the Special
Master, the government caused a third-party vendor in Virginia to scan unclassified documents
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seized from Mar-a-Lago. Ex. 4. On September 28, 2022, “FBI Agent 19” sent an email regarding
planning for the project. Ex. 5. The instructions included: “[a]ll classified placeholders must be
removed [from the boxes] and replaced with generic spreadsheets at appropriate level. We will
talk through a generic marking system with [‘FBI Agent 9’] later this morning.” Id.
Based on disclosures by the Special Counsel’s Office, including their May 3, 2024
submission, ECF No. 522, it appears that the FBI’s handling of the “classified placeholders” may
have led to further reshuffling of the order of the documents within the boxes. It also appears that
the FBI failed to document the scanning process until June 5, 2023. See Ex. 4.
III. Post-Indictment Interviews Of The Filter Team
Beginning on July 11, 2023, after the Indictment was filed, a member of the Special
Counsel’s Office and an attorney from the USAO-SDFL met with FBI agents, including from the
Filter Team, “to discuss the execution of the August 8, 2022 search of Mar-a-Lago.” Ex. 6. Notes
from the meeting include the following entries:
 “Filter searches – order not preserved, filter material pulled to front/top of box for DC to
explore.” Ex. 7 at USA-01291278.
 “Filter at some point, started pulling class out + placed on top. Search team still went
through every doc.” Id. at USA-01291280.
The notes refer to the need for a “follow on” call with two other agents, which does not appear to
have happened.
As discussed below, the Special Counsel’s Office did not produce these notes to the defense
until May 23, 2024, over 10 months after the meeting occurred.
IV. President Trump’s Discovery Demands
On June 21, 2023, the Special Counsel’s Office started to produce discovery. On
September 1, 2023, the Office produced what it described as “NARA Box Scans,” which we
6
understand to relate to the so-called 15 Boxes that President Trump voluntarily disclosed to
NARA.4
On October 9, 2023, President Trump asked the Special Counsel’s Office to disclose “[a]ll
documents relating to the planning and execution of the search” at Mar-a-Lago, and “[a]ll
documents relating to personnel present for the search.” Ex. 8 (Request 2). The defense defined
the term “documents” broadly, to include:
(i) all communications, including memoranda, reports, letters, notes, emails, text messages,
and other electronic communications; (ii) hard copies and electronically stored
information, whether written, printed, or typed; and (iii) all drafts and copies.
Id at 1.
In response to the request, the Special Counsel’s Office claimed, falsely, that it had
“already produced all responsive material to which the defense is entitled.” Ex. 9 at 2. In
connection with the response, the Office disclosed the Operations Order that is central to their
pending motion for a gag order, see ECF No. 592, and an additional FBI photo log—but not all
FBI electronic communications regarding the execution of the search, not the instructions to the
Filter Team, and not the notes from the July 2023 meeting in which the Filter Team disclosed that
they failed to maintain the order of the documents in the boxes during the raid.
V. Misrepresentations By The Special Counsel’s Office
At least twice, the Special Counsel’s Office misrepresented to the Court that the order of
the documents within each box was intact, i.e., the documents were in the same order as they were
at the time the raid commenced.
4
During a conferral with the Special Counsel’s Office on June 6, 2024, President Trump’s counsel
asked the Office whether the order of the documents in the 15 Boxes is intact. As of this filing,
the Office has not addressed that question.
7
On March 1, 2024, the Court conducted a hearing relating to, inter alia, scheduling. In
connection with a discussion of time necessary to review discovery, counsel for Mr. Nauta asserted
that he needed to “sit with Mr. Nauta and review the contents of those boxes, including the
documents as they existed in the box with the classification marking, albeit, at this moment in time,
with the classified information redacted from . . . .” 3/1/24 Tr. 57 (emphasis added). In partial
response to counsel’s point, Bratt later argued:
[T]he boxes have always been available for defense review. That was in our first discovery
letter to all defendants. Now, as I think I explained, the actual classified documents were
pulled out and are stored elsewhere, but there are markers as to where they’re found.
Id. at 83 (emphasis added).
On March 12, 2024, counsel for Mr. Nauta and Mr. De Oliveira reviewed the contents of
certain boxes in Washington, D.C. During the inspection, counsel were advised, misleadingly,
“that as a result of the Special Master’s review of the boxes, their contents may not be in the same
order as when they were seized.” ECF No. 507 at 6 n.4. In fact, the documents in the boxes are
not in the same order as when they were seized principally because the Filter Team made no effort
to preserve the documents in that fashion.
On April 12, 2024, the Court held a hearing relating to additional pretrial motions filed by
Mr. Nauta and Mr. De Oliveira. During the hearing, Bratt made the following misrepresentation:
THE COURT: Are the boxes in their original, intact form as seized?
MR. BRATT: They are, with one exception; and that is that the classified documents have
been removed and placeholders have been put in the documents.
4/12/24 Tr. 65.
VI. Untimely Disclosures By The Special Counsel’s Office
On May 1, 2024, counsel for Mr. Nauta joined a pending application for an adjournment
of the deadline for Defendants’ CIPA § 5 Notice. ECF No. 507. In that filing, counsel reiterated
8
that “[t]he contents of the boxes, including where documents with classification markings were
within the boxes, is therefore relevant to Mr. Nauta’s defense.” Id. at 4 (emphasis added); see also
id. at 12 (“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.”).
In a responsive filing on May 3, 2024, the Special Counsel’s Office disclosed for the first
time—despite being on notice of this fact since July 11, 2023, see Ex. 7—that the Filter Team
“was not focused on maintaining the sequence of documents within each box” during the raid.
ECF No. 522 at 6. Subsequent disclosures to the defense have revealed that the phrase “not
focused” was, at best, a remarkable understatement. Some Filter Team agents now claim that the
task they were instructed to perform was “impossible.”
The Special Counsel’s Office also disclosed on May 3, 2024, that the “investigative team”
had “removed” and “segregated” from the boxes documents allegedly bearing classification
markings, and “replaced” those documents in the boxes with “cover sheet[s].” ECF No. 522 at 6.
In Washington, D.C., the FBI “generally replaced the handwritten sheets with classified cover
sheets annotated with the index code.” Id. at 7 (emphasis added). It remains unclear, to an
unacceptable extent, what the Office’s “generally” qualifier was intended to mean.
In an effort to explain why some handwritten cover sheets remain in the boxes, see ECF
No. 522 at 7, the Special Counsel’s Office added that “any handwritten sheets that currently remain
in the boxes do not represent additional classified documents—they were just not removed when
the classified cover sheets with the index code were added.” Id. at 7. The submission does not
meaningfully engage with the import of the FBI’s September 2022 email thread concerning
9
removal of “[a]ll classified placeholders,” replacement with “generic spreadsheets,” and a “generic
marking system.” Ex. 5 (emphasis added).
In a further strained effort to explain the current composition of the boxes, the Special
Counsel’s Office added: “In many but not all instances, the FBI was able to determine which
document with classification markings corresponded to a particular placeholder sheet.” ECF No.
522 at 7. The Office made no effort to specify or explain the “many but not all instances” for
which that statement was accurate, and we still do not know with specificity what the Office meant.
The Special Counsel’s Office finally acknowledged that “there are some boxes where the
order of items within that box is not the same as in the associated scans.” ECF No. 522 at 8. Based
on subsequent discovery disclosures about the Filter Team’s approach to the raid, including notes
from the July 2023 meeting that the Office possessed when it filed the May 3, 2024 submission, it
appears that by “some boxes” the prosecutors meant “all of the boxes.”
The Special Counsel’s Office also relegated to a footnote the additional troubling
admission that the current situation “is inconsistent with what Government counsel previously
understood and represented to the Court.” ECF No. 522 at 8 n.3. The Office offered “several
possible explanations,” but failed to disclose the most obvious. Id. at 8. Specifically, as the Office
had known since July 2023 but not disclosed to the Court or defense counsel, the Filter Team did
not even try to preserve the order of the documents in each (and every) box that was targeted during
the raid. See Ex. 7. Instead of making that clear, the Office speculated in a misleading fashion
that there were “instances in which the boxes were accessed”—after the raid and the Filter’s Team
rummaging through the boxes—and suggested that “the size and shape of certain items in the
boxes possibly leading to movement of items.” ECF No. 522 at 8. Notwithstanding that the source
of the problem was the execution of the raid itself in August 2022, the Office also suggested to the
10
Court and counsel that the “best evidence available” of “the order the documents were in when
seized” was the October 2022 scans of the boxes. Id.
VII. President Trump’s Additional Discovery Demands
In response to the new disclosures in the May 3, 2024 filing by the Special Counsel’s
Office, President Trump transmitted additional discovery demands to the Office on May 4, 2024.
ECF No. 529-1. President Trump sought, among other things, (1) the instructions provided to the
Filter Team and investigative team concerning the raid (Requests 1, 2); (2) all communications
relating to the execution of the raid (Request 3); (3) documents and communications relating to
chain of custody (Requests 4, 5, 10, 11); (4) documents and communications relating to the
Office’s representation that the FBI had “generally” used handwritten placeholders in connection
with seized documents (Requests 7-9); and (5) documents that led to the disclosures in the Office’s
May 3, 2024 filing (Request 13). Id. We also asked the Office to identify the boxes for which
they “currently concede that ‘the order of items within that box is not the same as in the associated
scans.’” Id. at 4 (Request 12).
VIII. The May 2024 Filter Team Interviews By The Special Counsel’s Office
After President Trump sent the discovery demands, members of the Special Counsel’s
Office interviewed FBI personnel from the Filter Team. Ex. 10. Whereas it appears that the July
2023 meeting was conducted in a group setting, the Office interviewed the agents individually in
May 2024.
During one interview, a member of the Filter Team (“FBI Agent 36”) asserted that it was
“not practical to ensure” that the order of documents within the boxes was maintained during the
raid. Ex. 11 at USA-01291468. Another agent (“FBI Agent 5”) claimed that it would have been
“impossible” to maintain the order of the documents within each box. Ex. 11 at USA-01291473
11
(“impossible to maintain exact order”); id. at USA-01291474 (“Not possible to maintain exact
order as when first opened”).
Similarly, “FBI Agent 13” indicated that it would have been “impossible to maintain exact
order.” Ex. 11 at USA-01291472. “FBI Agent 13” added that s/he “[d]id not focus on maintaining
order nor did [s/he] think [s/he] could even if [s/he] was focused on it.” Id. “FBI Agent 13” also
disclosed that s/he “believe[d]” s/he had pulled documents with alleged classification markings
from their location within a box and placed those documents at the top of each box. See id. (“‘I
believe I did’ when asked if he pulled classified out and placed on top.”).
“FBI Agent 17” told the Special Counsel’s Office that he “can’t say w[ith] 100% certainty
everything [was] in same order.” Ex. 12 at USA-01291476. “FBI Agent 17” also disclosed that
an unspecified set of notes relating to the raid was “in his desk in Miami” rather than uploaded to
the FBI’s electronic case file as they should have been. Id at USA-01291477.
IX. The May 2024 Untimely Disclosures By The Special Counsel’s Office
On May 23, 2024, the Special Counsel’s Office responded to President Trump’s May 4,
2024 discovery demands and made additional disclosures concerning the deeply flawed execution
of the raid and the improper handling of the documents in the boxes. See Ex. 13. Although the
disclosures are plainly relevant to defense motion practice, as reflected in this submission, the
Office took the untenable position that the materials included in the production “exceed[ed] our
current discovery obligations.” Id. at 1.
In addition to the notes from the May 2024 interviews of the Filter Team, the fifteenth
production of unclassified discovery by the Special Counsel’s Office included the following
plainly discoverable materials:
 Additional internal FBI emails from between August 8 and August 11, 2022, including
communications relating to FBI efforts to turn off CCTV during the search, which is
12
relevant to the application of the good-faith doctrine in connection with suppression

motions;
 The above-referenced August 9, 2022 email chain between FBI agents requesting a “call .
. . asap,” which apparently related to “information concerning where the documents were
allegedly located,” Ex. 3;
 Summaries of instructions provided to the Filter Team, which demonstrate that the agents
disregarded instructions to document the specific locations of seized documents (and which
were responsive to President Trump’s October 9, 2023 discovery demand), see Ex. 1;
 An FBI report and handwritten notes from the Office’s July 2023 meeting with the Filter
Team, which disclosed, contrary to subsequent in-court representations, that the order of
documents within the boxes was not intact, see Exs. 6 and 7;
 A report relating to the FBI’s review of the 15 Boxes from NARA and removal of allegedly
classified documents, which the FBI failed to document until March 5, 2024, Ex. 14;
 FBI notes from monitoring defense counsel’s March 12, 2024 inspection of the boxes,
which include details regarding counsel’s review that arguably invaded the Defendants’
work product privilege such as how much time counsel spent reviewing each box, Ex. 15;
and
 A previously classified report, declassified on May 21, 2024, relating to the FBI’s “late
documentation” of allegedly classified items removed from boxes seized during the raid,
Ex. 16.
The May 23, 2024 letter from the Special Counsel’s Office also purported to respond to
President Trump’s May 4, 2024 discovery demands. See Ex. 13 at 2. The substance of the
responses further illustrates the lack of professionalism and diligence that the Office has employed
thus far in connection with its discovery obligations.
Regarding President Trump’s request for instructions provided to the Filter Team and the
investigative team, the Special Counsel’s Office argued that they had “already produced all
responsive material to which the defense is entitled” but had included “early Jencks material” in
the fifteenth production. Ex. 13 at 2. The incorrectness of those legal arguments is illustrated by
the fact that materials from the fifteenth production are part of the basis for this motion. See Fed.
R. Crim. Proc. Rule 16(a)(1)(E)(i). In connection with conferral relating to this motion, the Office
13
indicated it was withholding the remainder of the pre-raid memorandum to the Filter Team on the
basis of “work-product privilege,” which is a position the defense contests.
In the fifteen production, the Special Counsel’s Office also suggested that they were
producing “updated chain of custody information” as some kind of courtesy, “even though you did
not specifically request it.” See Ex. 13 at 2. To the contrary, President Trump’s Requests 4, 5,
and 11 plainly called for such information. See ECF No. 529-1 at 3-4. Moreover, particularly
under circumstances where the FBI had to retroactively document chain-of-custody information
because the agents failed to timely do so in the first place, these documents are automatically
discoverable under Brady irrespective of a defense request. See, e.g., Kyles v. Whitley, 514 U.S.
419, 442 n.13 (1995) (“There was a considerable amount of . . . Brady evidence on which the
defense could have attacked the investigation as shoddy.”).
Finally, with little explanation, the Special Counsel’s Office refused to provide details
regarding the vague claims that they made in the May 3, 2024 submission and the basis for those
claims. Compare ECF No. 529-1 at 4-5 (Requests 10, 12, and 13), with Ex. 13 at 3. For example,
in response to Request 12, the Office did not identify the boxes for which documents are no longer
in the same order as they were at the time of the raid. In response to Request 13, the Office did
not disclose the steps that it had taken to verify the disclosures in the May 3, 2024 submission.
APPLICABLE LAW
When the government “suppresses or fails to disclose material exculpatory evidence, the
good or bad faith of the prosecution is irrelevant: a due process violation occurs whenever such
evidence is withheld.” Illinois v. Fisher, 540 U.S. 544, 547 (2004) (first citing Brady v. Maryland,
373 U.S. 83 (1963); and then citing United States v. Agurs, 427 U.S. 97 (1976)).
14
“Even in the absence of a specific request, the prosecution has a constitutional duty to turn
over exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt.”
California v. Trombetta, 467 U.S. 479, 485 (1984). The government also has a “duty” to “preserve
evidence” that “might be expected to play a significant role in the suspect’s defense.” Id. at 488.
A “significant role in the suspect’s defense” under Trombetta is the “standard of constitutional
materiality” under Brady and Agurs. Id. at 489. The materiality standard requires the government
to “disclose during pretrial discovery (or later, at the trial) evidence which, in the eyes of a neutral
and objective observer, could alter the outcome of the proceedings.” United States v. Jordan, 316
F.3d 1215, 1252 (11th Cir. 2003). Where materiality is “fairly debatable,” the government should
either disclose it or “mark the material as a court exhibit and submit it to the court for in camera
inspection.” Id. (emphasis added); see also United States v. Bundy, 968 F.3d 1019, 1033 (9th Cir.
2020) (reasoning that “[t]he retrospective definition of materiality is appropriate only in the context
of appellate review,” and “trial prosecutors must disclose favorable information without
attempting to predict whether its disclosure might affect the outcome of the trial.” (cleaned up));
Justice Manual § 9-5.001(B)(1) (“Recognizing that it is sometimes difficult to assess the
materiality of evidence before trial, prosecutors generally must take a broad view of materiality
and err on the side of disclosing exculpatory and impeaching evidence.”).
Even where the unpreserved evidence was not material under Brady and Agurs, the “failure
to preserve” evidence that is “potentially useful” violates due process if the defendant “can show
bad faith on the part of the police.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also
United States v. Garcia-Solar, 775 F. App’x 523, 530 (11th Cir. 2019) (“If the destroyed evidence
was not clearly exculpatory but only ‘potentially useful,’ a defendant must show that the
government acted in bad faith.”).
15
“The presence or absence of bad faith by the police for purposes of the Due Process Clause
must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the
time it was lost or destroyed.” Youngblood, 488 U.S. at 56 n.*. Bad faith under Youngblood is a
factual question, which must be addressed through evidence, and courts routinely hold hearings to
address these types of motions. See, e.g., Garcia-Solar, 775 F. App’x at 531 (describing hearing
testimony of “Officer Hadley”); United States v. Gayle, 608 F. App’x 783, 786, 790 (11th Cir.
2015); United States v. Lanzon, 639 F.3d 1293, 1297 (11th Cir. 2011); United States v. Hameen,
2018 WL 6580996, at *1, 8 (M.D. Fla. 2018); United States v. Stoll, 2011 WL 703875, at *1-2
(S.D. Fla. 2011); United States v. Portocarrero-Reina, 2006 WL 1232827, at *1-2 (M.D. Fla.
2006).
DISCUSSION
The Court should dismiss the charges against President Trump based on the combination
of spoliation of exculpatory evidence, affirmative misrepresentations regarding the spoliation, and
untimely disclosures regarding these failures despite earlier defense discovery demands that called
for this information. Additionally, the facts set forth in this motion further support suppression of
evidence seized in connection with the Mar-a-Lago raid, as well as compelled disclosures
regarding evidence of official bias, political animus, and other bad-faith behavior by members of
the prosecution team.
I. The Prosecution Team Failed To Preserve Material, Exculpatory Evidence
The prosecution team violated President Trump’s due process rights by failing to keep the
documents intact and in the same order as they were found during the raid. This is true whether
the Filter Team’s conduct is evaluated under the rubric of suppression of materially exculpatory
evidence under Brady, or a failure to preserve such evidence under Trombetta. Dismissal is the
16
only appropriate remedy for such violations, and that is true irrespective of the Filter Team’s bad
faith. See Fisher, 540 U.S. at 549 (reasoning that “the applicability of the bad-faith requirement
in Youngblood depended not on the centrality of the contested evidence to the prosecution’s case
or the defendant’s defense, but on the distinction between ‘material exculpatory’ evidence and
‘potentially useful’ evidence”).
As the government plotted to raid Mar-a-Lago, it was manifest that the location of allegedly
classified documents within the boxes—i.e., buried and comingled with President Trump’s
personal effects—would play a “significant role” in President Trump’s defense against any future
charges. Trombetta, 467 U.S. at 488. That is because, for any such charges, the government would
be required to demonstrate that President Trump was aware that the boxes contained allegedly
classified documents in August 2022, notwithstanding his de minimis role in packing the boxes
and “caus[ing]” them to be moved to Mar-a-Lago in early 2021. ECF No. 85 ¶ 25.
The temporal gap between the packing and moving of the boxes from Washington, D.C.,
to Florida by third parties, and the subsequent alleged possession and retention of documents in
those boxes by President Trump, was apparent on the face of the search warrant application. See
ECF No. 566-2 at 16-17. The government also focused on this issue in the instructions to the Filter
Team before the raid. Specifically, while the Special Counsel’s Office is improperly withholding
portions of those instructions based on disputed work-product arguments, it is clear that the Filter
Team was directed to “document the location of the classified document, [and] photograph it and
the location where it was found, including with the comingled documents and container . . . .” Ex.
1 at USA-01291483. Those same instructions anticipated that photographs taken during the Filter
Team’s work would include “the location where the materials were found and any other comingled
materials.” Id. Following the raid, in an August 30, 2022 filing in the Trump litigation, the
17
government acknowledged the relevance of the “location” of the documents and the fact that they
were “comingled” with President Trump’s personal items. See Trump, ECF No. 48 at 12 n.6, 16.
Hindsight reveals tremendous irony in the government’s citation to Wuagneux in the same public
filing, see id. at 17, because in that case the Eleventh Circuit relied on hearing testimony from a
searching agent “that whole files were kept intact so that the agents could identify where individual
documents came from and where they belonged . . . .” Wuagneux 683 F.2d at 1353 (emphasis
added).
As early as September 2023, the Special Counsel’s Office acknowledged, as they must,
that the § 793 offenses at issue require proof that President Trump knew allegedly classified
documents were stored in the boxes. See ECF No. 165 at 4; see also 11/1/23 Tr. 54-55. The Office
argued in their proposed jury instructions that the first element of the charged § 793 offenses
requires proof of “unauthorized possession.” ECF No. 428 at 14. President Trump agrees with
the Office’s assertion that “[a]ctual possession” means a person “knowingly has direct physical
control” of the item. Id. at 16 (emphasis added). The Office also argued that the third element of
the § 793 offenses requires proof that President Trump “willfully retained the document.” Id. at
15. For purposes of that element, the Office asserted that “willfully” means that the retention “was
committed voluntarily and purposely, with the intent to do something the law forbids.” Id. at 17
(emphasis added). But the Filter Team failed to preserve important evidence that directly
supported those defenses and instead destroyed that evidence by rummaging through the boxes in
an undisciplined and undocumented fashion.
Dismissal was “the only available and appropriate reaction” to similar spoliation of
evidence in a case before the judge who later acted as Special Master in the Trump litigation. See
United States v. Soriano, 401 F. Supp. 3d 396, 405 (E.D.N.Y. 2019). In Soriano, customs officials
18
identified heroin packages secreted in food containers packed in a defendant’s luggage. See id. at
398. The agents destroyed the luggage and the food items, and, as here, there were “no relevant
photographs of items as they were found.” Id. at 403. Regarding the materiality of the destroyed
evidence, Judge Dearie reasoned that “where knowledge is the principal issue,” “little things can
mean an awful lot” and “even seemingly inconsequential facts viewed in the context of the overall
story can and often do have substantial import for the fact finder.” Id. Customs officials handled
the defendant’s luggage and its contents in a manner similar to the way the Filter Team handled
documents during the raid, and “[p]ictures taken after-the-fact of only some, but not all, items,
after the bags were thoroughly searched and all the contents removed have little if any probative
worth whatsoever.” Id. at 404. “To suggest otherwise is disingenuous to say the least.” Id.
Judge Dearie also found an inquiry into “the issue of bad faith” to be “genuinely out of
place and inappropriate,” and “beside the point,” because “[t]he damage is done” and “[i]t cannot
be undone.” Soriano, 401 F. Supp. 3d at 404. The defendant was “irreparably crippled, and even
an accurate assessment of the extent of the damage is lost to the unknown as a result of purposeful
conduct by a government actor.” Id. So too here. The FBI failed to preserve the order of the
documents within the boxes, and there are no photographs or logs documenting the nature in which
the allegedly classified documents were comingled with personal effects and out of plain view.
That evidence was materially exculpatory as to the knowledge and intent requirements of the
§ 793(e) charges, and the Superseding Indictment should be dismissed to remedy these due process
violations.
II. The Prosecution Team Failed To Preserve Potentially Useful Evidence
The Filter Team’s misconduct also destroyed a related type of “potentially useful” evidence
under Youngblood. In addition to the exculpatory nature of the fact that the allegedly classified
19
documents were not positioned in visible locations at the tops of the boxes, the proximity of
allegedly classified documents to other materials bearing dates long before the boxes’ removal
from the White House would have added force to the defense argument regarding lack of
knowledge and the absence of willful retention. In Soriano, Judge Dearie reached a conclusion
that applies equally to this aspect of President Trump’s motion: “[A]n accurate assessment of the
impact of the Government’s inexplicable destruction of patently relevant evidence is not possible
since the physical evidence is gone and there are no reliable substitutes given the Government’s
admitted failure to document in any comprehensive form what was destroyed.” Id. at 402-03.
Nevertheless, we do know that the boxes contained items such as newspapers and letters
dated long before President Trump’s first term in office ended. It would have been potentially
useful, and likely powerful in some instances, for the defense to be able to use this proximity to
show how long the allegedly classified documents had resided in those boxes. Due to the
spoliation, however, there are no comparable means to present the most forceful articulation of
this argument at trial.
III. The Prosecution Team Acted In Bad Faith
Unlike the Trombetta violation relating to spoliation concerning the general location of
allegedly classified documents within the boxes, the Youngblood violation arising from the failure
to preserve potentially exculpatory evidence of the documents’ neighbors requires a showing of
bad faith on the part of the responsible parties. The record supports such a finding, and an
evidentiary hearing would add force to the conclusion.
In Soriano, Judge Dearie identified a series of considerations that are probative of bad faith,
which are also present in this case. Like the Filter Team’s disregard of the order of the documents
during the raid, there was “complete and immediate destruction of the bulk of the relevant
20
evidence” in Soriano. 401 F. Supp. 3d at 404. The customs officials in Soriano acted in violation
of “agency policy” and a memorandum of understanding with DOJ; the Filter Team agents in this
case acted in violation of the pre-raid instructions that were provided to them (but that have not
been fully disclosed to the defense). Id. Prior to destroying the defendant’s bags and containers,
the customs officials in Soriano had debriefed her “thoroughly.” Id. In this case, based on
interactions with President Trump’s PRA representatives, “Trump Attorney 1,” and “Trump
Attorney 2,” see ECF No. 85 ¶ 53, the prosecution team was well aware that part of President
Trump’s response to any allegations would be that he did not know there were additional allegedly
classified documents in boxes at Mar-a-Lago. Finally, in Soriano and in this case, there was a
“failure to photograph, inventory or otherwise document all evidence.” Id. at 405. Here, that
failure was in direct contravention of the instructions provided to the Filter Team. All of these
considerations support a finding of bad faith and, at minimum, a hearing on these issues.
IV. The Bad-Faith Inquiry Requires Complete Disclosures Of Animus
Should fact finding be necessary, the Supreme Court and the Eleventh Circuit have looked
to “official animus” as a relevant consideration in the bad-faith inquiry. Trombetta, 467 U.S. at
488; United States v. Revolorio-Ramo, 468 F.3d 771, 775 (11th Cir. 2006) (“As in Trombetta, the
record contains no allegation of official animus towards respondents or of a conscious effort to
suppress exculpatory evidence.” (cleaned up)). Thus, Trombetta and Revolorio-Ramo serve as at
least the fourth basis for granting President Trump’s pending motion to compel discovery of all
evidence—including internal communications by or between members of the prosecution team—
regarding “bias and/or political animus toward President Trump.” ECF No. 469 at 51-55. 5
5
The other bases for granting the Defendants’ motions to compel disclosure of all evidence
reflecting official bias and political animus include: (1) discovery on President Trump’s motion to
21
V. The Untimely Disclosures Further Demonstrate That The Special Counsel’s Office Is
Not In Compliance With Their Discovery Obligations
Since at least September 2023, President Trump has called attention to the objective truth
that the Special Counsel’s Office is much more interested in rushing to trial for purposes of election
interference than complying with their discovery obligations. See, e.g., ECF No. 160. Indeed, if
Jack Smith had gotten his wish in this case, the trial would have been over long before any of these
issues came to light. See ECF No. 34 (seeking December 11, 2023 trial date). As the Office has
continued to push ahead recklessly on behalf of President Biden, they have assured the Court in
unsworn briefs that they have “complied with” and “exceeded” their discovery obligations. ECF
No. 187 at 1. Pleased to provide “curated lists of important evidence” and “an exhaustive
roadmap” of their favorite politically motivated allegations, the Office has claimed that the
unclassified discovery is “extensive, prompt, and well-organized.” ECF No. 522 at 4; ECF No.
173 at 1. They have also averred that they are in “full compliance” with the Justice Manual. 3/1/24
Tr. 80.
This motion is the most recent illustration of the reality that those claims are patently false.
For example, the Justice Manual required the Special Counsel’s Office to review the entire case
file maintained by the prosecution team. See Justice Manual §§ 9-5.001(B), 9-5.002(B). While
the scope of the prosecution team is currently disputed, the Office concedes that it includes FBI
agents in Miami and Washington, D.C. who worked on this case. Had that review actually taken
place in the required fashion, the prosecutors would have identified and, presumably, produced
dismiss for selective and vindictive prosecution, see ECF No. 300 at 6-11, ECF No. 508 at 26;
(2) fact-finding on the good-faith defense by the Special Counsel’s Office in response to other
unlawful aspects of the Mar-a-Lago raid, see ECF No. 568 at 5-7; and (3) the Defendants’
entitlement to evidence that can be used to impeach the integrity of the investigation under Kyles
and its progeny, see ECF No. 469 at 43-45.
22
much sooner the notes from the July 2023 meeting where the Filter Team disclosed that the “order”
of the documents was “not preserved” during the raid, potentially privileged “filter material” had
been “pulled to [the] front/top of box” for FBI agents in “DC to explore,” and that “at some point”
the agents started “pulling” allegedly classified material “out” of the boxes and “plac[ing it] on
top.” Ex. 7 at USA-01291278, USA-01291280. Similarly, had the case-file review proceeded as
required, the Office would presumably have provided much earlier the recently produced
electronic communications by FBI agents participating in the search, including messages regarding
trying to turn off CCTV at Mar-a-Lago and where some of the seized documents “were allegedly
located,” Ex. 3. One of the recently produced FBI emails references use of “IM,” or Instant
Messenger. Id. Given all that has transpired, we can no longer assume that the Office has carried
out its obligation to search the relevant files, including the prosecution team’s instant messages
and personal electronic devices, for discoverable evidence. The Justice Manual required that
course of action at the outset of this case, as did Brady and Rule 16, and the Office’s failure to
timely carry it out with respect to the spoliation issue is further cause for concern about ongoing
non-compliance.
It is exceedingly difficult to write off the untimely disclosure of the July 2023 notes in May
2024 as some sort of negligence in light of the fact that President Trump specifically requested
that type of information in an October 2023 request for “[a]ll documents relating to the planning
and execution of the search.” Ex. 8 (Request 2). The subsequent approach to these issues by the
Special Counsel’s Office is just as concerning. The Office made misrepresentations to the Court
regarding the status of the boxes at hearings in March and April 2024. 3/1/24 Tr. 83; 4/12/24 Tr.
65. Through the use of terms like “generally,” “was not focused,” and “many but not all instances,”
the Office’s May 3, 2024 submission raised more questions than it answered—including but not
23
limited to whether the same spoliation occurred with respect to the 15 Boxes turned over to NARA.
ECF No. 522 at 6-7.
Remarkably, only after making written claims in the May 3, 2024 filing that compounded
the problems with the prior verbal misrepresentations to the Court, and only after President Trump
sent additional specific discovery demands on May 4, did the Office individually interview
members of the Filter Team in May 2024. Those interviews revealed a callous attitude toward
President Trump’s rights and a disregard of basic professionalism that strongly support the relief
requested herein. It would not have been “impossible” to keep the documents intact. Ex. 11 at
USA-01291468, USA-01291473. Rather, it would simply have required the agents to focus more
and devote additional time to the extraordinarily sensitive task they were undertaking during the
raid. The Office displayed a similar disregard for basic fairness and their ethical obligations in the
May 23, 2024 discovery letter by characterizing notes from the May 2024 interviews as “early
Jencks material” (as opposed to constitutionally mandated discovery), by withholding portions of
the instructions to the Filter Team on the basis of a work-product claim that is as strained as their
previous privilege assertions, see ECF No. 300 at 25-28, and by suggesting that production of
“updated” chain of custody information that further documented the agents’ failure to follow
applicable policies and procedures was a courtesy to the defense rather than constitutionally
required under Kyles. Ex. 13 at 2.
This course of conduct is relevant to all of the bad-faith inquiries presented in the
Defendants’ pretrial motions, including dismissal under Trombetta and Youngblood, suppression
based on spoliation, and suppression based on the unlawful warrant used to raid Mar-a-Lago.
24
CONCLUSION
For the foregoing reasons, President Trump respectfully submits that the Court should
dismiss the Superseding Indictment, and suppress all evidence seized in connection with the
August 2022 raid at Mar-a-Lago, based on destruction of exculpatory evidence.
Dated: June 10, 2024 Respectfully submitted,
/s/ Todd Blanche / Emil Bove

Todd Blanche (PHV)
[email protected]
Emil Bove (PHV)
[email protected]
BLANCHE LAW PLLC
99 Wall Street, Suite 4460
New York, New York 10005
(212) 716-1250
/s/ Christopher M. Kise

Christopher M. Kise
Florida Bar No. 855545
[email protected]
CONTINENTAL PLLC
255 Alhambra Circle, Suite 640
Coral Gables, Florida 33134
(305) 677-2707
Counsel for President Donald J. Trump
25
CERTIFICATE OF CONFERENCE
I hereby certify that on June 6, 2024, counsel for President Trump and the Special
Counsel’s Office conferred in a good faith effort to resolve the issues herein, but were unable to
do so. The Special Counsel’s Office requested that we include the following statement:
The Government opposes defendant Trump’s spoliation motion. The defendant has
failed to provide factual or legal support for a spoliation claim under controlling Eleventh
Circuit and Supreme Court caselaw. The Government has met and exceeded its
discovery and other legal obligations. The defendant’s misconduct allegations are, once
again, false.

Christopher M. Kise
26
CERTIFICATE OF SERVICE
I, Christopher M. Kise, certify that on June 10, 2024, I electronically filed the foregoing
document with the Clerk of Court using CM/ECF.

Christopher M. Kise
27

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Case 9:23-cr-80101-AMC Document 612 Entered on FLSD Docket 06/10/2024 Page 1 of 29

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

vs. Case No. 23-80101-CR

PRESIDENT DONALD J. TRUMP’S MOTION TO DISMISS BASED ON

of the allegedly classified documents at issue.1

in staging—and leaking—manipulated photographs to the press than preserving key exculpatory

in compliance with their discovery obligations.

President Trump caused these due process violations to further unravel.

the misconduct by those responsible for destroying exculpatory evidence.

I. The Raid At Mar-A-Lago

motion to suppress. See ECF No. 566.

and the Storage Room that the government unlawfully targeted.

included the following:

Id. at USA-01291483 (emphasis added).

Id. (emphasis added).

Mar-a-Lago. However, as discussed in more detail below, notwithstanding the foregoing

documents were allegedly located.” Id.

II. Relevant Proceedings in Trump v. United States

in an investigation of unauthorized retention and mishandling of national defense information.”

III. Post-Indictment Interviews Of The Filter Team

from the meeting include the following entries:

IV. President Trump’s Discovery Demands

the term “documents” broadly, to include:

V. Misrepresentations By The Special Counsel’s Office

at the time the raid commenced.

response to counsel’s point, Bratt later argued:

Id. at 83 (emphasis added).

to preserve the documents in that fashion.

4/12/24 Tr. 65.

VI. Untimely Disclosures By The Special Counsel’s Office

classified discovery he reasonably expects to disclose or cause to be disclosed at trial.”).

task they were instructed to perform was “impossible.”

marking system.” Ex. 5 (emphasis added).

seized” was the October 2022 scans of the boxes. Id.

VII. President Trump’s Additional Discovery Demands

scans.’” Id. at 4 (Request 12).

order as when first opened”).

current discovery obligations.” Id. at 1.

plainly discoverable materials:

relevant to the application of the good-faith doctrine in connection with suppression

thus far in connection with its discovery obligations.

basis of “work-product privilege,” which is a position the defense contests.

defense could have attacked the investigation as shoddy.”).

Justice Manual § 9-5.001(B)(1) (“Recognizing that it is sometimes difficult to assess the

and err on the side of disclosing exculpatory and impeaching evidence.”).

government acted in bad faith.”).

of spoliation of exculpatory evidence, affirmative misrepresentations regarding the spoliation, and

the prosecution team.

I. The Prosecution Team Failed To Preserve Material, Exculpatory Evidence

‘potentially useful’ evidence”).

an undisciplined and undocumented fashion.

II. The Prosecution Team Failed To Preserve Potentially Useful Evidence

this argument at trial.

III. The Prosecution Team Acted In Bad Faith

to preserve potentially exculpatory evidence of the documents’ neighbors requires a showing of

evidentiary hearing would add force to the conclusion.

IV. The Bad-Faith Inquiry Requires Complete Disclosures Of Animus

record contains no allegation of official animus towards respondents or of a conscious effort to

evidence—including internal communications by or between members of the prosecution team—