Special counsel Jack Smith’s team acknowledged Friday that some evidence in the prosecution of former President Donald Trump for hoarding classified documents at his Florida home may not be in the same sequence FBI agents found it when they swept into the Mar-a-Lago compound with a search warrant in August 2022.

The concession from prosecutors in a court filing Friday afternoon came after attorneys for one of Trump’s co-defendants asked for a delay in the case because the defense lawyers were having trouble determining precisely where particular documents had come from in the 33 boxes the FBI seized almost two years ago.


In their filing, prosecutors acknowledged the government had previously — and incorrectly — told U.S. District Judge Aileen Cannon that the boxes remained “in their original, intact form as seized,” other than a decision to replace classified documents with placeholder sheets.

That depiction, the prosecutors conceded, is “inconsistent” with their current understanding that some of the documents are not now in the same order as they appear in digital scans of the records that were made in the fall of 2022 after Cannon ordered an unusual process to review whether the FBI may have seized legally privileged records.

“There are some boxes where the order of items within that box is not the same as in the associated scans,” prosecutors wrote, adding in a footnote: “The Government acknowledges that this is inconsistent with what Government counsel previously understood and represented to the Court.”

Prosecutors claim the discrepancies in the sequence of the records is of no significance to the criminal case filed in June 2023. Smith’s lawyers say the apparent jumble took place despite various precautions, including having an FBI agent present while an outside vendor scanned the documents so that Trump’s attorneys could see what was seized. The 11th Circuit Court of Appeals ultimately halted the review Cannon ordered.