Left: Special Counsel Jack Smith. (AP Photo/J. Scott Applewhite, File)/Center: In this image from video provided by the U.S. Senate, Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing on July 29, 2020./Right: Donald Trump speaks with supporters on June 1, 2023 (AP Photo/Charlie Neibergall, File)
The federal judge in the Mar-a-Lago classified documents prosecution of Donald Trump ruled on Tuesday that Special Counsel Jack Smith persuasively argued under the Classified Information Procedures Act (CIPA) that two co-defendants in the case should not be allowed access to classified discovery.
With the CIPA issue simmering on the stovetop for months, U.S. District Judge Aileen Cannon not only denied Trump valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira the ability to personally review classified materials, she also teased a “forthcoming Order Denying Defendants’ Motions for Access,” an order she indicated would apply to Trump as well.
Noting that Jack Smith has provided Nauta and De Oliveira’s lawyers with “classified discovery produced to date,” Cannon explained that the co-defendants’ asserted need to personally review classified materials fell flat for multiple reasons. Cannon began by highlighting the differences in the charges against Trump and co-defendants, as far as what prosecutors have to prove (citations removed for ease of reading):
Defendants Nauta and De Oliveira are charged in Count 33 with an alleged conspiracy to obstruct justice, the specific purpose of which was “for TRUMP to keep classified documents he had taken with him from the White House and to hide and conceal them from a federal grand jury”. Defendant Nauta faces four additional document-related charges, all involving efforts to allegedly withhold or conceal “documents with classification markings” located at Mar-a-Lago. Additionally, Defendants Nauta and De Oliveira are charged with two counts related to alleged attempts to delete Mar-a-Lago security camera footage, and with making false statements to the FBI.
Unlike the charges brought against Defendant Trump under 18 U.S.C. § 793(e), the document-related charges against Defendants Nauta and De Oliveira do not require proof that they willfully retained documents “relating to the national defense”. The Special Counsel also indicates that he does not intend to present evidence suggesting that Defendants Nauta and De Oliveira acted with an inculpatory purpose specific to them and to the 102 classified-marked documents seized from Mar-a-Lago.
As a result, the judge said, Jack Smith “made a sufficient showing” that Nauta and De Oliveira’s personal review of classified documents would not help their cause — and the co-defendants’ lawyers (who have had access to classified discovery) failed to point to a document or documents that “would be helpful in countering” the conspiracy charges their clients face:
Third, Defendants Nauta and De Oliveira fail to rebut the Special Counsel’s showing as to the subject materials’ lack of helpfulness. Defense counsel for Nauta argues, in general terms, that his client’s personal review of the substance of the documents would be helpful in countering the Special Counsel’s intent-related arguments as to the conspiracy charged in Count 33. Even accepting the defense’s reasonable position concerning the intent requirements of Count 33 as charged, Defendants Nauta and De Oliveira still fail to provide any examples of documents produced in classified discovery that—if made available to them for personal review—would be helpful in countering the allegation that they conspired to help Defendant Trump “keep classified documents he had taken with him from the White House” and “hide and conceal them from a federal grand jury”.
Beyond this, the defense made arguments that “exist at too high a level of abstraction to rebut the Special Counsel’s showing,” Cannon wrote.
“Defendant Nauta argues, for example, that the contents of the documents in the boxes he is alleged to have unlawfully moved cannot readily be separated from the subject classification markings—making review of the entirety of the documents helpful to the defense or to countering the Special Counsel’s case,” the judge said. “Although intuitive in some sense, the Court still is left without any reasonably concrete example of a classified document, or documents, the substance of which appear helpful to either Defendant Nauta or De Oliveira in defending against the non-§ 793(e) charges against them.”
In short, Cannon ruled that “the Special Counsel has met his burden” under CIPA § 4 to withhold classified materials from Nauta and De Oliveira, except as to a “document/image charged in Count 32 as to Defendant Nauta.” But the judge also indicated a ruling against Trump is on the horizon on the issue of deleting “four discrete ‘categories’ of classified information” from discovery.
Jack Smith additionally asked that the court “redact, substitute, or delete from cleared counsel and Defendants Nauta and De Oliveira” those four categories, but Cannon indicated that she would address that request in a separate order unfavorable to Trump [emphasis ours]:
The Special Counsel’s additional request as to the four “categories: of information is addressed in a forthcoming Order on Special Counsel’s CIPA § 4 Motion as to Defendant Trump. This ruling is made in conjunction with the Court’s forthcoming Order Denying Defendants’ Motions for Access.
Read the order here.
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