Molly Butler/Media Matters

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Right-wing media and Trump misleadingly claim that the DOJ altered evidence in response to new legal filing in classified documents case

Trump posted an article from a right-wing outlet pushing the claim and demanded that special counsel Jack Smith be arrested

Right-wing media and former President Donald Trump are twisting the details of a new court filing from special counsel Jack Smith — which acknowledged that some of the classified documents seized from his Mar-a-Lago residence in August 2022 have shifted out of order — to baselessly claim that the DOJ “manipulated” evidence and to call for the case against the former president to be dropped. 

Prosecutors said the boxes still contained precisely the same materials as when they were seized. But that didn’t stop one right-wing commentator from demanding that Smith be arrested and “criminally charged” for tampering “with evidence to try & frame a former president.” 

Meanwhile, Rep. Jim Jordan (R-OH) sent a letter to the Department of Justice’s Office of Professional Responsibility questioning whether the special counsel’s office had “misled a federal court” and asked that the attorneys involved in the case be held “accountable.”

  • Special Counsel Jack Smith’s team acknowledged in a recent filing that some of the documents seized from Mar-a-Lago have shifted out of order, but prosecutors argue that it should not impact the case

    • On May 3, Smith submitted a legal filing in Trump’s classified documents case that acknowledged that “there are some boxes where the order of items within that box is not the same as in the associated scans.” The admission appeared in a filing opposing former Trump aide and current co-defendant Walt Nauta’s request to delay the deadline to submit filings associated with the Classified Information Procedures Act. Nauta and his attorneys argued that they needed a new deadline because they were struggling to determine which documents had been retrieved from specific boxes after the FBI searched Mar-a-Lago in August 2022. [Court Listener, 5/3/24; Newsweek, 5/6/24]
    • Prosecutors argued that some of the documents being out of order is irrelevant to the case. According to Politico, prosecutors said that the act of transporting the boxes filled with items of variable “size and shape” could explain the apparent shifts of the documents out of the original order. Politico summarized prosecutors’ arguments, writing, “Despite the reordering, each box still contains precisely the same material it had in it when it was seized.” National security journalist Marcy Wheeler argued, “While I think it ridiculous that the FBI hasn’t managed to keep boxes straight from either Trump or Biden, Smith’s argument — that this is entirely pointless to Nauta’s defense — should be sufficient.” [Politico, 5/3/24; Empty Wheel, 5/6/24]
  • Right-wing media responded to the filing by baselessly claiming that Smith had buried an admission of evidence manipulation and calling for the case against Trump to be dropped

    • Within hours of the filing, Judicial Watch President Tom Fitton claimed that the new filing was an admission from Jack Smith that the DOJ had committed “evidence tampering.” Fitton declared that the filing’s revelation was “Yet more reason to throw out this sham prosecution.” [Twitter/X, 5/3/24]
    • The night the filing was posted, right-wing outlet Just the News posted an article titled “Trump Whodunnit: Prosecutors admit key evidence in document case has been tampered with.” The article claimed that “Jack Smith’s team is admitting” that evidence had been “altered or manipulated since it was seized by the FBI, and that prosecutors misled the court about it for a period of time.” [Just the News, 5/3/24]
    • Conservative commentator Julie Kelly, who has repeatedly pushed January 6 conspiracy theories, went on a right-wing media tour in response to the filing to push claims of evidence “tampering” and “prosecutorial abuse.” In an interview on Donald Trump Jr.’s Rumble show, Kelly claimed that the filing showed there was “prosecutorial abuse.” That same day on War Room, Kelly claimed that Judge Aileen Cannon, the Trump-appointed federal judge overseeing the case, was “fed up” and “knows how bad this case is.” “It’s getting worse related to tampering with evidence, missing evidence, doctored evidence,” Kelly said. And in an interview on The Charlie Kirk Show, Kelly agreed with guest host Andrew Kolvet that the filing is evidence that Trump was the victim of government “entrapment.” [Twitter/X, 5/7/24; Real America’s Voice, War Room, 5/7/24; Real America’s Voice, The Charlie Kirk Show, 5/7/24; Media Matters, 2/21/23]
    • Right-wing outlet The Washington Times’ editorial board called for the case to be dropped due to the filing. The article, titled “DOJ mishandled evidence in Trump case,” concluded, “Dropping this mess entirely seems an appropriate response.” [The Washington Times, 5/7/24]
    • Discussing the filing on his radio show, Fox host Sean Hannity asserted that Judge Cannon should drop the case. Hannity noted that “Washington Times has now spoken out about this, and they think that this case needs to be dropped by Judge Cannon,” declaring, “I agree with them.” Hannity also claimed that the “special prosecutor literally had to admit and confess to the court that they tampered with evidence against Donald Trump.” [Premiere Radio Network, The Sean Hannity Show, 5/8/24
    • On Fox News’ Sunday Morning Futures, John Ratcliffe, who served as director of national intelligence under Trump, claimed that Jack Smith “tampered with the evidence and misrepresented or lied to the court about that.” He went on to say that Smith admitted “in his words” that “they mishandled the classified documents and misrepresented those to the court,” which Ratcliffe claimed was “a kind way of saying, ‘We tampered with the evidence and then we lied to the court about it.’” On X (formerly Twitter), he amplified the appearance, accusing Smith of “tampering evidence and then lying.” [Fox News, Sunday Morning Futures, 5/5/24; Twitter/X, 5/5/24]
    • Responding to the filing, frequent Fox News guest Sean Parnell declared that “Jack Smith should be disbarred & criminally charged” because “he tampered with evidence to try & frame a former president.” Parnell continued: “He presented what he knew to be fake crime scene photos to the court to imply Trump had secrets documents haphazardly scattered on the floor. This was ALL a lie.” [Twitter/X, 5/4/24]
  • Trump and his allies, including in Congress, pushed right-wing media’s claims that the filing proved the DOJ committed evidence tampering and manipulation

    • Trump called Smith “a criminal,” demanded Smith’s arrest, and declared that the case should “be DROPPED IMMEDIATELY” because “Jack has admitted in a filing … That he and his team committed blatant Evidence Tampering by mishandling the very Boxes they used as a pretext to bring this Fake Case.” On Truth Social, Trump posted the Just the News article on the filing and wrote, “ARREST DERANGED JACK SMITH. HE IS A CRIMINAL!” In another, Trump cited the filing to declare, “These deeply Illegal actions by the Politicized ‘Persecutors’ mandate that this whole Witch Hunt be DROPPED IMMEDIATELY. END THE ‘BOXES HOAXES.’ MAGA2024!” [Truth Social, 5/3/24; Fox News, 5/5/24]
    • House Judiciary Committee Chairman Rep. Jim Jordan (R-OH) sent a letter to the DOJ’s Office of Professional Responsibility claiming that Smith had admitted in the recent court filing that seized documents were manipulated. In the letter sent on May 6, Jordan said he has “grave concerns" about the Justice Department’s “commitment to impartial justice,” and questioned “whether the Special Counsel’s Office misled a federal court, whether the Special Counsel’s Office strenuously upheld the ‘highest professional standards’ of the Department of Justice.” Jordan further asked the Office of Professional Responsibility to “hold accountable” attorneys who may have violated the standards. [Fox News, 5/7/24]
    • Trump lawyer Alina Habba appeared on Fox News to discuss the filing, claiming that it shows “Jack Smith has his hand in the cookie jar” and that “he was intentionally taking evidence, not telling the court that he had basically taken classified document covers, put them on the wrong documents.” Habba added, “Our team is strong there and they are looking at this closely.” [Fox News, America’s Newsroom, 5/8/24]