Left: Special Counsel Jack Smith (AP Photo/J. Scott Applewhite, File); Center: Aileen M. Cannon speaks remotely during a Senate Judiciary Committee hearing (U.S. Senate); Right: Donald Trump speaks with supporters at the Westside Conservative Breakfast, June 1, 2023, in Des Moines, Iowa. (AP Photo/Charlie Neibergall, File)
On Tuesday, a federal judge agreed to keep the names of potential government witnesses in the Mar-a-Lago classified documents case secret, but showed her unhappiness in the order granting the government’s requests.
In her 24-page order, U.S. District Judge Aileen Cannon ruled in favor of the state and the defense, in part, and at least, for now.
The ruling represents a limited ending to a long procedural dispute in the Southern District of Florida. The dispute involved the state, the defendants, and Cannon over a large set of discovery materials.
Cannon dedicates more than five pages to discussing what she calls the "lengthy procedural history" of the dispute.
In February, the court controversially ruled the government must file those documents with minimal redactions, denying requests from prosecutors to seal or redact the names of government witnesses in some of the materials they have already given to defense attorneys.
Days later, Cannon paused her order after Special Counsel Jack Smith, in a 22-page motion for reconsideration and stay, termed her decision to publicly reveal those would-be witness names “clear error.” That argument was widely viewed as a signal the government was prepared to bring the 11th Circuit Court of Appeals, which has reversed Cannon in the case before, into the latest contretemps.
During several back-and-forth motions related to the discovery dispute over witnesses, the defense and the state filed motions over other discovery materials, including certain grand jury materials and a floor plan of Mar-a-Lago. In each instance, the government wanted to keep those documents under wraps, while the defense argued the materials are public records that should be released with limited censoring.
In her Tuesday order, Cannon makes sure to argue her earlier order — which she is now reversing — was both on firm legal ground and carefully drafted to address concerns about agreed-upon redactions.
Guided by the strong presumption of public access to criminal proceedings, the Court applied the unobjected-to First Amendment standard. Under this standard, along with the well-established rules governing public access in this District, the Court determined that ‘the Special Counsel has not set forth a sufficient factual or legal basis warranting deviation from the strong presumption in favor of public access to the records at issue.’ The Orders also set deadlines for the sealed submission of the parties’ respective filings for the Court’s review prior to public docketing.
The judge criticizes Smith for bringing up legal arguments late, saying they should have been raised earlier. The court had several reasons to deny the government’s motions.
Cannon also questions Smith’s understanding of the law, especially in terms of First Amendment analysis.
The order from Tuesday states that the Special Counsel's initial request didn't provide a legal framework or factual support, and later, they didn't address the Press Coalition's argument about the First Amendment.
Now, Cannon says that previous issues don't matter because she is using her discretion to review the record after several filings and a March hearing. Precedent is not straightforward, but it also doesn't favor Trump.
Cannon’s new order explains in detail why she changed her mind.
Although the record is clear that the Special Counsel could have, and should have, raised its current arguments previously, the Court elects, upon a full review of those newly raised arguments, to reconsider its prior Order. Having done so, the bottom line is this. The Eleventh Circuit has not specifically addressed the instant question: whether, in a criminal proceeding, the First Amendment qualified right of access attaches to discovery materials referenced or attached in support of a publicly filed Rule 12(b) motion to compel discovery under Rule 16. Nevertheless, the most faithful application of Supreme Court and available Eleventh Circuit authority is that Defendants’ MTC in this case is not subject to a public right of access, whether constitutional or common law in nature, because it is a still, ultimately, a discovery motion as distinct from a substantive pre-trial motion requiring judicial resolution on the merits.
The order acknowledges the broad nature of the Special Counsel’s request but finds that they have shown enough under Rule 16 for now, even though it's uncommon to grant such a request.
The government must create an index with pseudonyms for potential witnesses, and the judge gives an example of how it should be done.
Cannon ruled for the defense by allowing them to quote from a U.S. Secret Service email chain but with redactions to protect witness identities. Trump and his co-defendants can also produce a search warrant with relevant redactions.
Both sides experienced formal losses. The defense can't publish the Mar-a-Lago floor plan or certain grand jury materials.
Cannon denied the government’s request to bar the publication of all witness statements relied on in pre-trial motions, stating that it was too broad. The defense can publish the statements as long as they don't identify potential witnesses.