Judge Aileen Cannon, pictured left (U.S. District Court for the Southern District of Florida), (right) special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)
After special counsel Jack Smith threatened to appeal if the judge in the Mar-a-Lago case did not order the redaction of government witness names, the judge begrudgingly reversed herself. Now the jurist is expressing “concern” about Smith’s observance, or lack thereof, of the careful framework he insisted on in Donald Trump’s Espionage Act prosecution.
On Sunday, U.S. District Judge Aileen Cannon issued an order surrounding Trump defense motions to dismiss the case on grounds of alleged prosecutorial misconduct and violations of due process, as well as a Trump motion to suppress based on the “unlawful piercing of attorney-client privilege.”
The judge previously told the prosecution and defense to submit proposed redactions consistent with her previous rulings, and she noted that the sides “largely” agreed that witness names and “personal identifying information” should remain shielded from public view. Still, there was disagreement on “whether certain materials” in the Trump motion to suppress “should be redacted on the basis of attorney-client privilege,” the judge said.
Rather than rendering a decision on whether attorney-client privilege applies, Cannon kicked the can down the road and okayed redactions in the meantime, having agreed to “accept for now” Trump’s “characterization of the material as privileged pending merits review of the privilege issues raised in the Motion to Suppress[.]”
At the same time, Cannon rejected Trump’s request to redact several witness statements from his motions and accepted Smith’s arguments in favor of “continued secrecy” when it comes to grand jury materials.
Though partially granting Smith’s sealing requests, Cannon next took an opportunity to blast the special counsel.
“In closing, the Court deems it necessary to express concern over the Special Counsel’s treatment of certain sealed materials in this case,” the judge began. “In two separate filings related to sealing, the Special Counsel stated, without qualification, that he had no objection to full unsealing of previously sealed docket entries related to allegations of prosecutorial misconduct. In light of that repeated representation, and in the absence of any defense objection, the Court unsealed those materials consistent with the general presumption in favor of public access.”
And yet, the special counsel is inconsistently applying the “sealing and redaction rules” he made full-throated arguments in favor of, undermining that very position, Cannon indicated.
“[C]ounsel explained that the Special Counsel took the position on unsealing in order to publicly and transparently refute defense allegations of prosecutorial misconduct raised in pretrial motions. Fair enough,” Cannon said. “But nowhere in that explanation is there any basis to conclude that the Special Counsel could not have defended the integrity of his Office while simultaneously preserving the witness-safety and Rule-6(e) concerns he has repeatedly told the Court, and maintains to this day, are of serious consequence, and which the Court has endeavored with diligence to accommodate in its multiple Orders on sealing/redaction.”
“The Court is disappointed in these developments,” she added. “The sealing and redaction rules should be applied consistently and fairly upon a sufficient factual and legal showing. And parties should not make requests that undermine any prior representations or positions except upon full disclosure to the Court and appropriate briefing.”
Read the order here.
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