It was not so long ago that Judge Aileen Cannon’s decision to appoint a special master to oversee the evidence collected at Mar-a-Lago was scoffed out of appellate court. Vindication, though, for the much-judged jurist could now be at hand. Special Counsel Jack Smith admits that the arrangement of documents turned over to the defendants does not match how they were found at the manse. He admits to furnishing an “inconsistent” account.

The issue, which Mr. Smith suggests is harmless, may have figured in the stunning decision by Judge Cannon this afternoon to delay the Mar-a-Lago case indefinitely. The judge, without mentioning the question of the government’s handling of evidence and misleading the court, cites the “myriad and interconnected” issues to be resolved. The decision will be a bitter blow to Mr. Smith, who has been frantically pressing for an early trial. 

Regarding the government’s handling of documents, President Trump’s lawyers are decrying “evidence spoliation.” Mr. Smith seeks to minimize the fallout, insisting that he has complied with discovery obligations. He argues that the order of the documents does not make a difference.  The prosecutor blames the “size and shape of certain items in the boxes leading to movement” for the documents deviating from “their original, intact form as seized.”

The fallout began when Judge Cannon indefinitely postponed a bellwether hearing, a sign of what was to come. No explanation was given, but the spoliation of evidence could account for it. Even after the trial delay, more trouble for the special counsel could be coming, given that jurists hardly enjoy being misled on such a weighty matter as evidentiary chain of custody, especially when the mishandling of documents is at the center of the case.

It was in September of 2022, just weeks after the search of Mar-a-Lago, that Judge Cannon named a federal judge, Richard Dearie, as special master. She cited the “extraordinary circumstances” of the case. She also expressed her unwillingness to accept the “Government’s conclusions on these important and disputed issues without further review by a neutral third party in an expedited and orderly fashion.” 

In appointing Judge Dearie, Judge Cannon took notice of  “documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials.” Her concern was such that she enjoined Mr. Smith “from further use of the content of the seized materials for criminal investigative purposes pending resolution of the Special Master’s recommendations.” Prudence, in other words, was her byword.

Judge Dearie hardly had time to put on his green eyeshades. Mr. Smith appealed, and the following December a panel of the 11th Circuit ruled against Judge Cannon in scalding terms. They determined she had no jurisdiction for acting as she did, and castigated her for seeking to “carve out an unprecedented exception in our law for former presidents.” They accused her of a “radical reordering of our case law.”

Not only that. The circuit riders added that keeping the special master in place “would violate bedrock separation-of-powers limitations.” They called Judge Cannon’s arguments “a sideshow” and reminded the trial judge that “ordinary experience cannot support extraordinary jurisdiction.” The appellate court castigated her for acting from a “lack of information” and wrote that “the law is clear” — the appointment of a special master was a mistake. 

Was it, though? Mr. Smith is suggesting that the reordering of the evidence is harmless. That’s easy for him to say. He’s not facing a long stretch in the big house for allegedly violating the espionage laws. Mr. Trump, though, could be sent up the river. It’s a situation in which it strikes us — as it did when the special master question went to the 11th Circuit — that custody of evidence should always be by the book. A special master struck us as an ideal solution.

Now it’s Mr. Smith who is being accused of an “extraordinary breach” of his “constitutional and ethical obligations,” and of having “failed to preserve critical evidence.” Mr. Smith places the blame for what he calls the jostled “intra-box document sequencing” on unnamed “personnel.” We’re not suggesting that prosecutors did that intentionally. Could the time be at hand, though, for Judge Dearie to fetch his green eyeshades after all?

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This editorial has been updated from the bulldog.