The federal judge overseeing the classified documents case against former President Donald Trump rebuked special counsel Jack Smith’s response to a lawsuit but ultimately granted his request to redact the names of witnesses in the case.
Her order noted that prosecutors allegedly failed to provide good arguments on multiple occasions.
“The Special Counsel had two opportunities to raise these arguments and failed to do so in both instances. The Special Counsel’s initial Seal Request failed to offer a governing legal framework or any factual support for the relief sought,” she wrote, adding that “arguments and evidence advanced in the Special Counsel’s Motion could have, and should have, been raised in prior filings. Denial of the Motion would be appropriate on that basis.”
The judge also was critical of what she said was the special counsel’s inability to comply with rules on such court filings. “This is to say nothing of the Special Counsel’s failure to comply with this District’s Local Rules on sealing, which the Court has emphasized repeatedly throughout this proceeding,” she wrote.
Meanwhile, she added that Mr. Smith’s team “failed to offer a governing legal framework or any factual support for the relief sought” against the media coalition and instead only included “conclusory and unsubstantiated assertions about witness safety, the integrity of the proceedings, and privacy interests.”
Although she chided Mr. Smith’s team, the judge ultimately agreed to his proposal.
The “most faithful application of Supreme Court ... authority” is that the defendants’ motion to release the names of witnesses in the 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,” Judge Cannon concluded, in part.
However, she refused to categorically block witness statements from being disclosed, saying there was no basis for such a “sweeping” and “blanket” restriction on their inclusion in pretrial motions.
The judge rejected a request by the Smith team to seal from pretrial motions the substance of all witness statements, with the exception of information that could be used to identify witnesses.
“As for legal authority, the cases cited in the Special Counsel’s papers do not lend support to this sweeping request; nor do they appear to have been offered as such,” Judge Cannon wrote. “And based on the Court’s independent research, granting this request would be unprecedented: the Court cannot locate any case—high-profile or otherwise—in which a court has authorized anything remotely similar to the sweeping relief sought here.”
In the case, President Trump is facing dozens of felony counts related to the retention of classified documents, according to an indictment. Authorities say the records were stowed in dozens of boxes warehoused at Mar-a-Lago, which was searched by the FBI in August 2022 in an escalation of the investigation. He has pleaded not guilty to the charges.
The case was initially set for trial on May 20, but Judge Cannon heard arguments last month on a new date without immediately setting one. Both sides have said they could be ready for trial this summer, though defense lawyers have also said President Trump should not be forced to stand trial while the election is pending.
The order comes as Mr. Smith has been critical of the judge’s proposed jury instructions, which would allow President Trump’s lawyers to submit questions saying he had a right to keep classified documents as his personal items because he, as president, designated them as such. The special counsel’s team have said that he had no right to do so.
In a separate order issued on April 4, Judge Cannon described Mr. Smith’s response that she change the jury instruction wording as “unprecedented and unjust.”
Some legal analysts noted that Mr. Smith’s criticism of the judge’s proposed jury instructions was unusually direct, while a former federal prosecutor last week said that her recent order sent an “ominous” warning to the special counsel regarding the instructions.
Prosecutors have argued that witnesses they interviewed did not hear President Trump “say that he was designating records as personal or that, at the time he caused the transfer of boxes to Mar-a-Lago, he believed that his removal of records amounted to designating them as personal under” the Presidential Records Act.
“To the contrary, every witness who was asked this question had never heard such a thing,” they added. President Trump has maintained on social media that he had the power to declassify documents for his own personal property.
