President Trump’s use of profanity to refer to Special Counsel Jack Smith — a rhetorical escalation from even his own vituperative rhetoric — could signal more formal pushback from attorneys for the 45th president. 

Those comments, reported by the New York Times, allegedly came during a fundraiser at Mar-a-Lago, where the president used a coarse epithet to describe the prosecutor. His remarks followed the special counsel’s disclosure that the order of the secret documents now in government custody could have gotten mixed up  since the raid on the Palm Beach manse last summer. Mr. Smith also acknowledges that his office was not truthful — “inconsistent” is his word — with Judge Aileen Cannon. 

Mr. Trump has long been caustic in his denunciations of the special counsel who is prosecuting him in respect of both the classified documents and the effort to overturn the outcome of the 2020 presidential election. The former president has alleged that Mr. Smith’s “wife and family despise me more than he does,” and that the prosecutor is “deranged.”   

The twin admissions, though, on the part of the government that “there are some boxes where the order of items within that box is not the same as in the associated scans,” and that Mr. Smith’s office has been “inconsistent” in relaying that information to Judge Cannon, appears to have turbocharged Mr. Trump’s criticism.   

The broadside at Palm Beach reportedly also included the reflection from Mr. Trump that Mr. Smith is “unattractive both inside and out.” 

The former president followed that with a post on Truth Social that Mr. Smith “has admitted in a filing in front of Judge Cannon to what I have been saying happened since the Illegal RAID on my home, Mar-a-Lago, in Palm Beach, Florida — That he and his team committed blatant Evidence Tampering.”

Following the disclosure regarding the handling of evidence, Mr. Trump also took to Truth Social to write: “ARREST DERANGED JACK SMITH. HE IS A CRIMINAL.” While Mr. Trump is operating under a gag order in the January 6 case, it does not cover criticism of the special counsel or President Biden. Mr. Trump, in his New York state criminal trial, has been found to have violated his gag order on 10 separate occasions. 

While Mr. Trump fulminates in the court of public opinion, his lawyers are likely conferring on how to make courtroom hay of Mr. Smith’s missteps. One challenge could be that the admissions came in response to a request for more time on a deadline not from Mr. Trump, but from his co-defendant, the valet Waltine Nauta, who asserts that he needs leeway to prepare his defense. 

If anything, though, Mr. Trump’s case that he is harmed by possibly tampered with evidence is even stronger than the valet’s, who is charged only with a conspiracy to obstruct the collection of the boxes at Mar-a-Lago. Mr. Trump, though, faces 32 charges of violating the Espionage Act, all of which turn on the contents of those boxes. Any alteration to the evidence could furnish a challenge to its admissibility in court. 

Mr. Smith, in urging Judge Cannon to deny Mr. Nauta’s request, likely anticipates challenges from Mr. Trump. To that end, he underscores that “where precisely within a box a classified document was stored at Mar-a-Lago does not bear in any way” on the ability to prepare for trial. The special counsel insists that his office has met its obligations to furnish evidence to the defense, a duty marked in Brady v. Maryland. 

The government’s position on a challenge from Mr. Trump would likely be that the evidentiary snafu was “harmless,” or not the kind of mistake that disadvantages the due process rights of the defendants. Mr. Trump, though, could counter that Mr. Smith’s admission that “since the boxes were seized and stored, appropriate personnel have had access to the boxes” could merit further judicial scrutiny of the chain of custody.

Judge Cannon will also have to decide how to respond to the misrepresentation from one of Mr. Smith’s deputies, admitted in a footnote, that his office’s position is  “inconsistent with what Government counsel previously understood and represented to the Court.” In a hearing last month, the government affirmed that the evidence was in its “original, intact form as seized.”

The judge, whose relationship with Mr. Smith already vibrates with tension, could ask for a further explanation of how she was misled. Any additional hearings would put a trial date before the election even farther out of reach. Judge Cannon could also grant Mr. Nauta’s request for a delay and extend the same extension to Mr. Trump. The special counsel’s office could even be sanctioned, or threatened with contempt.