So as a highly cynical admitted skeptic, I facially reject the idea that the FBI seizing "classified" stuff from Mar-a-lago magically morphs it into becoming admissible. If we presume for the sake of argument that this was classified, and now the FBI reclaimed what shouldn't have left custody of the government, how does this magically make it admissible? It would be akin to saying all you needed to do was get someone to steal it, tell the fbi, have them reclaim it, and now its open season on whatever materials we want to see. This makes no sense whatsoever.

However, in my unable to be shut off constantly war gaming mind, I came up with a possibility. But I find it unlikely. Perhaps someone else could add to this. Or perhaps it will be agreed this is too far fetched. Looking forward to thoughts.

What governs admissibility of evidence in federal criminal and civil trials? That is simple. The Federal Rules of Evidence. What FRE rules would admit this evidence? Well...that isn't simple...I'll start at the beginning. Here is a link to the rules for those so inclined. https://www.law.cornell.edu/rules/fre

This is not intended to be an exhaustive dive into the many rules of evidence and exceptions. I will try to stick with those most applicable here. To start, FRE 402 covers the big picture on what is admissible, subject to many caveats. It states as follows:

"Relevant evidence is admissible unless any of the following provides otherwise:

the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible."

Plainly, the gateway question on admissibility that must be answered is "Is this relevant?" If it is not relevant, we stop the analysis right here.

What is considered relevant? The answer to that is found in FRE 401:

"Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action."

It only requires just the ever so slightest hint of a tendency to prove a fact is more probable or less probable. It is a very low burden. If some piece of evidence makes a fact more or less probable than without the evidence, it is admissible if that particular fact is of consequence in the action. "Of consequence in the action" is best explained like this: In a first degree murder case, the state, in most circumstances, must prove the essential elements of the crime beyond a reasonable doubt. First degree murder is commonly defined as the unlawful killing of a human that is premeditated, deliberate, and willful. Evidence of the defendant's email exchange with a third party about plotting to kill his ex wife is relevant, because it makes it more likely than without the email evidence that the killing was premeditated.

But the analysis does not stop here. Just because evidence is relevant does not automatically make it admissible. But if evidence is not relevant, we have no need to continue the analysis. It is not admissible.

Sometimes, a judge can still refuse to admit evidence even if it is relevant and also satisfies the rules. FRE 403 states:

"The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

It is not often that judges will rely on FRE 403. But it can and does happen sometimes. The key is the danger "substantially" outweighs the probative value. Not just that the danger outweighs the value. This is a high burden to meet.

Now to the meat and potatoes: If one wishes to introduce a document as evidence, aside from satisfying the threshold question on relevance, and complying with other rules, this document must be authenticated. FRE 901(a) states:

"In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."

FRE 902 describes self-authenticating documents. None of these categories appear facially to apply to non-public classified government documents. This appears to be a problem. Or is it? FRE 902(1)-(2) states documents with the below are self authenticating:

"(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine."

(see TLDR at the end for this application)

FRE 901(b)(1) provides that a witness with knowledge testifying that the item is what it is claimed is both the most common method utilized for satisfying the authentication requirement. But who is going to do that? This is a problem. (see discussion below on FRE 1003)

But we are still not over the hurdle. Trump almost certainly did not have boxes of the original documents. They are most likely copies and the originals are retained by the respective agencies that originated them. Even if he did, he most certainly doesn't have the originals now - the FBI does. More importantly: he would be the biggest dumbass in world history to not have made 500 other paper and digital copies and stashed them in various places. We know he didn't fail in that regard. And that sets up an entirely new problem to surmount. FRE 1002 states:

"An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise."

Yikes. Seems like he's screwed now? Not so fast...

I think FRE 1003 gets us on our way to solving this problem but not without its own hurdles:

"A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate."

A cucked judge would happily toss this evidence upon first objection by the defense that they "doubt" the authenticity. This is highly problematic. Second to this, "authentication" by one of Trump's inner circle - Kash Patel, John Ratcliffe, or Richard Grenell is likely to provide a cucked judge enough wiggle room to find the same, due to potential conflicts of interest. However, an uncucked judge is likely to accept their authentication. Except we cannot rely upon having an uncucked judge in this trial.

What happens now? Well, if you are looking at the admissibility of this evidence in a criminal prosecution of deep state actors, you are looking in the wrong place. Plainly, "how do you lawfully admit evidence" is talking about Trump's civil RICO case. Durham doesn't have near the same hurdles as Trump does. And Durham represents the government. It would be pretty insane to see a judge tell the government that a government document copy submitted by the government is not authentic without some credible evidence to the contrary from the defense - which is simply not going to happen. And would likely be referred to the jury as a finding of fact to answer this question - is the government's evidence credible? And Durham would have some pretty broad leeway under the "Best evidence rule" which is not something I'll go into in this post. Those so inclined can google that to find out more.

Now the specific procedure and order here is kind of up in the air. But Trump has to petition the court for return of his property seized in the warrant, as is his right. It is slightly more complicated than I am describing, but not necessary in order to get to the point. The government will then have to either return it, or explain why it can't be returned. When they claim "it is classified, he's not entitled to have it" then he's got them. He can call the agents involved in the raid to authenticate his copies. No conflict exists with the people who busted in his house for a judge to reject this. And those agents can either (1) authenticate them or (2) find themselves in a position of either lying under oath refusing to return his property or lying under oath claiming that the documents Trump wants admitted as evidence are not authentic.

TLDR; perhaps the crooked FBI agents that raided his house are going to be put in the position of helping Trump get them admitted in his RICO case by having to authenticate copies of the very documents they were sent to retrieve to prevent Trump from using them; because a refusal to authenticate them would be perjury. Or forcing them to admit they are not classified, thus providing FRE 902 self authentication of the documents as public records that bear the signature of an FBI or DOJ agent/representative.