Former President Donald Trump speaks during a news conference at Trump Tower in New York on May 31, 2024.
CNN  — 

Former President Donald Trump has once again asked a judge to throw out the classified documents case, arguing this time that investigators destroyed exculpatory evidence by rifling through boxes for classified documents gathered in the FBI’s 2022 search of Mar-a-Lago.

The motion filed late Monday touches on allegations that have already come up in court – that the Justice Department allegedly tampered with evidence that would have been good for the former president. One of Trump’s codefendants asked Judge Aileen Cannon in May for a delay in the case because defense attorneys were struggling to understand the order of documents in the dozens of boxes seized by the FBI.

Special counsel Jack Smith’s team has already acknowledged in court that some of the documents may be out of order. In a May court filing, prosecutors wrote that “there are some boxes where the order of items within that box is not the same as in the associated scans,” adding in a footnote that “the Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court.”

Trump’s defense lawyers claim in their motion Monday that classified documents found during the search were “buried in boxes and comingled with President Trump’s personal effects from his first term in office,” so it was likely that the former president had no idea what was in the boxes – let alone if there were classified documents inside.

But, according to Trump, those boxes have been tampered with because investigators failed to maintain the order of their contents.

Investigators “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,” defense attorneys wrote. The individuals who searched the boxes showed a “callous attitude toward President Trump’s rights and a disregard of basic professionalism,” the attorneys wrote.

They continued, “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.”

If Cannon declines to throw out the charges, Trump’s attorneys asked that she throw out any evidence gathered during the 2022 search.

The judge has yet to decide several additional motions to dismiss the case from Trump and his two co-defendants. Cannon rejected one of their efforts to throw out the case Monday evening, ruling against their claims that the indictment suffered technical defects warranting its dismissal. However, the judge gave them a small victory by removing from an indictment prosecutors’ account of Trump allegedly showing a classified map to a political adviser, as the map was not one of the documents Trump is charged with mishandling. The ruling left open the possibility that Smith’s office could seek to put that alleged episode back into the evidence of the case.

All three have pleaded not guilty.

Since the disclosure that some of the documents fell out of order, Republicans in Congress have also seized on the revelation.

In a previous court filing, prosecutors stressed that the documents have remained in the individual boxes within which they were found and argued that the disclosure that they shifted in order was no reason to drag out the case’s proceedings. They also noted that a third-party review of the seized materials that Cannon ordered after the Mar-a-Lago search may be part of the reason that the documents fell out of order.

The Trump team countered in their new filing that discovery materials recently produced to the defense suggested that the FBI’s filter team — which sifted through the seized documents before Cannon ordered the third-party review and which was tasked with segregating documents potentially subject to privilege — had not preserved the original order of the documents within the boxes.

Smith’s office said in a statement attached to Trump’s Monday filing that the “misconduct allegations are, once again, false,” and that prosecutors had met their legal obligations.

In addition to the Monday filing seeking to throw out the case, the defense lawyers sought and received from the judge an extension on a deadline for them to disclose the expert witnesses they could potentially put on the stand during an eventual trial. The defense attorneys said that an expert they were hoping to put on their witness list had decided against participating in the case. Smith’s office had opposed the delay, according to the filings. The disclosures are now due July 8.