Judge Pauses Order to Unseal as Jack Smith Raises Witness Intimidation Concerns

Special Counsel Jack Smith arrives to give remarks on a recently unsealed indictment including four felony counts against former President Donald Trump in Washington, on Aug. 1, 2023. Drew Angerer/Getty Images

On Feb. 9, U.S. District Court Judge Aileen Cannon paused an order that could lead to revealing the identities of two dozen potential witnesses in former President Donald Trump’s classified documents case, in response to a Feb. 8 request by prosecutors.

Defense attorneys for President Trump were seeking to file a public court record on Feb. 9 to reveal the identities of the witnesses, and the judge has asked them to let the court know how the pause would affect this by 3 p.m.

The defense has also been given a deadline of Feb. 23 to file a response to the prosecutor’s request that the judge reconsider her order—one day after the deadline to file pretrial motions, on which the defense has said they plan to file multiple motions to dismiss the case.

Reconsideration

Special counsel Jack Smith is prosecuting the case against President Trump, who is charged with 40 counts related to allegedly mishandling classified documents. Mr. Smith is also prosecuting a second case against President Trump in Washington, D.C., charging him with obstruction and conspiracy for his actions on Jan. 6.

Prosecutors say their primary concern is that people associated with prosecutions of President Trump receive harassment and threats, pointing to several other ongoing cases. As such, they’ve asked the pause the order to unseal and to reconsider it in the meantime.

The judge’s order would have allowed the disclosure of some names while redacting personal information like home addresses, but the prosecutors argue the names should not be disclosed either.

“That discovery material, if publicly docketed in unredacted form as the Court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury,” the motion for reconsideration reads, “exposing them 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.”

“The Court’s Orders require the public identification of more than two dozen people who participated in the investigation. Some may never testify at trial and therefore would otherwise be able to retain their anonymity and privacy absent the Court’s Orders,” the motion reads.

The judge had previously found that the special counsel did not meet the burden of explaining why keeping this information sealed was necessary, reminding the parties that the public and press have a strong First Amendment interest in criminal prosecutions by the government.

“This conclusion was wrong in two respects and should be reconsidered,” the motion reads.

Last June, the judge had entered a protective order on unclassified information because they held personally identifiable information and were related to other ongoing investigations.

Prosecutors are arguing that the identity of witnesses, motions to compel discovery, and discovery itself are not public documents. Futhermore, defendants don’t have the right to the government’s witness list pretrial, they argued, and it was only the protective order which allowed the prosecutors to redact documents that led to them producing these materials in discovery.

“The First Amendment does not require the disclosure of these witnesses’ identities, particularly where, as here, their identities have no bearing on the resolution of the motion to compel,” they argued.

They point out that Judge Cannon herself had previously admonished the parties and reminded them to keep witness identities anonymous in a previous hearing.

“From that time until now, no witness names have been mentioned on the public docket,” the motion reads.

Prosecutors argue that requiring them to leave identities unredacted would prevent them from sharing those materials via discovery at all.

Harassment

Prosecutors say the risk of harassment is “far from speculative,” citing some examples.

Magistrate Judge Bruce Reinhart, who approved the Mar-a-Lago search warrant, has “been subject to numerous threats as a direct result of his involvement in this case,” and has noted that the FBI agents in the investigation were harassed after an unredacted copy of the search warrant was unsealed.

U.S. District Court Judge Tanya Chutkan, overseeing the other federal criminal case against President Trump, has received a “racist death threat,” prosecutors added, and Mr. Smith has received threats and harassment as well.

The prosecutors do not go into detail regarding the harassment, except in quoting an affidavit entered in a New York civil fraud trial against President Trump, where a court risk officer said there were hundreds of threatening phone calls and messages addressed to the presiding judge and his principal law clerk.

The affidavit was considered in affirming a gag order imposed on President Trump, and similar harassment arguments were used to advance a separate gag order on President Trump in the federal election case.

“The Court’s conclusion that the Government’s witness-safety concerns are too speculative or generalized is misplaced,” the prosecutors argued.