Loose Cannon: We Need to Talk About Florida…

A lot went down in the Southern District of Florida this week, with a hot docket throwing orders and motions at us in quick succession, related to the national defense information case against Donald Trump. With many different issues bubbling to the surface, we take a look at what exactly is going on and what the potential consequences could be, to help untangle the legal morass. Strap in for this one, we’re about to get technical…

Defense Motion to Compel Discovery

On January 16, Trump’s lawyers filed a motion, joined by the other defendants, seeking to compel discovery – that is, requesting that the judge order the Special Counsel’s office to turn over certain materials. 

In the motion, the defense argued that “the scope of the prosecution team” should be expanded to include the National Archives and Records Administration, the White House Counsel’s office, high-level DOJ staff, a broad swath of the FBI, the intelligence community, and the National Security Council. The motion also sought to compel “evidence of bias” including “any communications with members, relatives, or associates of the Biden Administration”, communications with Fulton County District Attorney’s Office, evidence of bias within the intelligence community, and “additional disclosures…regarding these issues and the witnesses they will rely on at trial.” 

Attached to this motion were redacted copies of some of the material the defense had already received in discovery. At the same time as filing the motion to compel, the defense filed a further motion, disingenuously titled “motion for temporary leave to file redacted brief”. Disingenuous in that what the motion actually called for was the unsealing of discovery material, which would reveal on the public docket the names of witnesses, their statements to the investigators, and other sensitive information that could place the people involved at risk of receiving threats, “infect” the testimony of other witnesses, and taint the jury pool.

The Government’s Response

Two days later, the Special Counsel’s office responded to the misleadingly-titled motion to unseal the discovery material the defense had included as exhibits in the first filing.

In the response, the Government opposed the unsealing of the exhibits attached to the defense motion to compel, calling the second motion “in effect a motion to disclose discovery material subject to the Court’s protective order” that could identify prospective Government witnesses and the content of their statements. Revealing it to the public now could be extraordinarily damaging.

The Special Counsel therefore asked the Court to keep under seal any information that reveals the identity and personal information of potential Government witnesses. Some of the exhibits that the defense seeks to unseal also contains sensitive material of a different nature, including signals intelligence sub-compartments which could be damaging to national security, the FBI code name of a separate investigation, and “uncharged conduct as to one or more individuals.”

Jack Smith asked that this information remain under seal and subject to the Court’s protective order.

Enter Judge Cannon

On February 6, Judge Cannon issued an order granting much of what Trump and his codefendants had asked for – the unsealing of private and sensitive information. In support of her order, Judge Cannon stated 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”, claiming that the Government had not substantiated witness safety and intimidation concerns. Although the signals intelligence was to remain under seal according to the order, the code name of the FBI investigation and descriptions of “uncharged conduct as to one or more individuals” was subject to imminent public release alongside the information relating to witnesses.

The Government then signaled that it would be filing a motion for reconsideration of this order and asked for permission to submit attachments to this motion ex parte (outside of the adversarial process, so only the judge and the prosecution have access to it). The exhibit they wished to keep from the defense “describes in some detail threats that have been made over social media to a prospective Government witness and the surrounding circumstances, and the fact that those threats are the subject of an ongoing federal investigation”. They argued that disclosure of those threats could jeopardize the investigation “because even with such names redacted, the details of the exhibit could reveal investigative methods, potentially further endanger the victim, and/or provide information to the suspect to which he/she may not otherwise be entitled.” 

A ”clear error” and a warning shot

On February 8, the Government filed its motion for reconsideration of the judge’s order to unseal a trove of sensitive witness information, stating that if the order was carried out, witnesses would be exposed to “significant and immediate risks of threats, intimidation, and harassment, as has already happened to witnesses, law enforcement agents, judicial officers, and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved.”

They argued that the judge applied the wrong legal standard in determining the documents should be unsealed. She’d required the prosecution to demonstrate a “compelling governmental interest” in keeping the information sealed, however as the Special Counsel pointed out, the Eleventh Circuit (the appellate court for Judge Cannon’s jurisdiction) has held that this standard does not apply to documents filed in connection with motions to compel discovery, like the one Trump filed. All the Government needs to show to keep the documents under seal is “good cause”, which they’ve demonstrated with regards to witness safety.

The Special Counsel also stated that reconsideration is needed to prevent “manifest injustice”, because the order to unseal would identify more than two dozen witnesses, some of whom “may never testify at trial and therefore would otherwise be able to retain their anonymity”. The Government also highlighted Judge Cannon’s own protective order, which made clear that the defendants could not disclose discovery material in any public filing – the very thing they’re seeking to do now. In issuing a protective order, good cause had been found, which would indicate that the Government had met that burden here, too.

Hello, judges of the Eleventh Circuit

In calling Judge Cannon’s order a “clear error”, the Special Counsel is signaling that he’s prepared to take this matter up with the Eleventh Circuit Court of Appeals if she doesn’t rescind the order – the very same court that has already reversed her decisions, twice. Some Circuits have been known to remove a judge who makes three reversible errors. 

It continues…

One day after the motion for reconsideration was filed, Judge Cannon ruled against the Government again. They’d asked that the exhibit they’d attached to the motion, detailing threats made to a witness and the ongoing investigation into those threats, be kept from the defense. Cannon, in a paperless order, stated that she’d found an “insufficient basis…to deviate from the adversarial process” and directed that the exhibit be provided to the defense.

What’s next?

Trump has until February 23 to respond to the Government’s motion for reconsideration. After reviewing the filings from both sides, the judge will make a decision on whether or not to uphold her own order. If she decides that the Government is wrong, expect Jack Smith to take the matter up with the Eleventh Circuit, who have already rebuked Judge Cannon twice in this case. 

The only plausible reason for the defense wanting to make public documents they already have access to, is to try this case in the court of public opinion. Trump is fully aware of the threats made to witnesses and others involved in his ever-increasing legal matters. With this latest move, it’s clear that seeing others have their lives turned upside down as a result of his actions is something he relishes. The only question now is whether Judge Cannon will assist him in this twisted pursuit.