Next week, Judge Aileen Cannon will hold a hearing under § 4 of the Classified Information Procedures Act to determine what classified evidence the government will be forced to disclose in the Trump documents case. It’s entirely possible that all hell is about to break loose, with Trump’s favorite jurist ordering the government to turn reams of secrets over to Trump’s henchmen, Walt Nauta and Carlos De Oliveira, who have demanded equal access to all the evidence. The government is entitled to an immediate appeal, which will then postpone the trial without Judge Cannon having to put her fingerprints on the delay. WIN, WIN, unless you’re a 2024 voter.
In the meantime, however, Judge Cannon’s latest ruling on sealed evidence has the Special Counsel channeling Will Ferrell in Zoolander.
In a motion for reconsideration filed last night, the prosecutors accuse the court of applying the wrong standard in two orders where she instructed the government to place exhibits on the public docket.
The issue involves a motion to compel Trump’s team filed on January 16. In it, they argued that the entire executive branch is part of the “discovery team” — more or less — and thus Trump should be able to extort documents from the Department of Energy, the National Security Counsel, and the White House mess (probably). Pursuant to a standing order, Trump’s team filed the document with redactions, and the exhibits under seal. But in an effort to become ungovernable, they demanded the right to put the exhibits, culled mostly from discovery materials disclosed by the government, on the public docket.
Unsurprisingly, the government objected to this doc dump, particularly with respect to Jencks material, the names and personally identifying information of witnesses, and “certain additional discrete sensitive information.”
“Protection of Government witnesses from harassment and intimidation is among the rationales of the Jencks Act’s exemption of witness statements from discovery, and among the reasons courts have routinely held that the Government may not be compelled to turn over Jencks Act materials sooner than the statute requires,” they argued, noting that witnesses in this and other Trump cases have faced persistent harassment.
“Public disclosure of witness identities or their statements in advance of trial also risks infecting the testimony of other witnesses or unnecessarily influencing the jury pool,” they added.
On February 6 and 7, Judge Cannon rebuffed the government’s efforts to keep the documents under seal, blithely pointing to the presumed public right of access and shrugging off concerns about witness intimidation.
“The party requesting closure must demonstrate that such action is ‘necessitated by a compelling governmental interest and is narrowly tailored to serve that interest,’” she tut-tutted, citing to Chicago Trib. Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, (11th Cir. 2001). That’s a weird case to cite, since the Eleventh Circuit specifically held that “compelling government interest” standard was wrongly applied to discovery materials, and the movant only had to show “good cause” for sealing. And in fact, that’s exactly what the Special Counsel’s Office said last night in its flatly aggressive demand that the judge walk back her ruling:
Both the First Amendment and the common law grant the press and the public a qualified right of access to criminal trial proceedings and certain judicial records. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). But neither the First Amendment nor the common law grants the press or the public a right to access discovery materials. Chicago Tribune Co., 263 F.3d at 1310-13; See Nickens, 809 F. App’x at 591.
The government points out that much of what the defendants want to put on the public docket is Jencks material which it delivered early (particularly in light of the fact that this trial is clearly not happening in May). It should not now be penalized for its early delivery under a protective order by seeing its witness interviews, including grand jury transcripts, splashed across the public docket.
“The defendants may not evade the strictures of the protective order by the simple expedient of filing protected discovery materials with the Court and then claiming that their unilateral decision converts the discovery materials into judicial records that are presumptively open to the public unless the Government can show otherwise,” the prosecutors argue.
As the government notes, the risks to witnesses in this case are “far from speculative.” Magistrate Judge Bruce Reinhart and even Judge Cannon herself have gotten death threats, as has Judge Tanya Chutkan who presides over the election interference case in DC.
Indeed, most judges think it’s kind of important to protect witnesses, they add, pointing to a recent order affirming redactions of information which “could impact both the confidentiality and the course of the ongoing criminal investigation, in addition to affecting the privacy of potential witnesses” in Senator Bob Menendez’s corruption case.
The government concedes that reconsideration is an “extraordinary” remedy. And yet they unsubtly suggest that this is clear error, of the kind which got her slapped down by the Eleventh Circuit just last year.
The court has ordered the defendants to respond by February 23, as well as inviting them to extract more time to argue about the underlying motion to compel — an invitation they’re unlikely to refuse.
US v. Trump [SDFL Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.