Legal experts raised the alarm after the judge overseeing Donald Trump’s classified documents case dismissed special counsel Jack Smith’s bid to keep government witnesses secret.
Smith’s team opposed making some information public. This information could reveal personal identifying information of any potential witnesses in the case they may have provided. They did so, citing concerns about witness intimidation.
However, Trump-appointed U.S. District Judge Aileen Cannon ruled in Trump’s favor on the matter. Cannon wrote: “Following an independent review of the Motion and the full record, the Court determines, with limited exceptions as detailed below, 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.”
Cannon questioned Smith’s concern for witnesses. As far as she is concerned, the Special Counsel’s response does not provide the necessary factual basis to justify sealing.
The Press Coalition, comprised of major media companies, also demanded that the court unseal Trump’s redacted motion in unclassified form. A Berkeley College law professor, Jeremy Foley, thinks it is “unusual for a judge to make classified documents public.”
“Before doing so, Judge Cannon was required to weigh the factors favoring disclosure: potential aid to the defense and the public interest argument asserted by the media groups against those identified by the government. Release of the documents could harm national security, impair an ongoing investigation, or compromise potential witnesses in the case,” he said.
“If the government is concerned that the judge’s order will cause harm. It can seek emergency relief from the 11th Circuit, which could stay the order pending review. We should know very soon if that happens,” Foley added.
The order has cast doubt on Cannon’s ability to be impartial. It has raised concerns that Cannon may be tilting the case in favor of Trump. “Judge Aileen Cannon continues to make rulings that are disturbing,” former U.S. Attorney Joyce Vance wrote on Substack.
“The pattern of ruling upon ruling that is out of the legal mainstream and results in delay well past the point where this case should have been ready for trial is something that shouldn’t be ignored,” he continued. “Judges should not put their fingers on the scales of justice either for or against a defendant or any other party.”
Vance believes that it’s impossible to avoid the conclusion that someone is tipping the scales in such a scenario. Smith’s “best option” may be to ask Cannon to reconsider. But according to Vance, the judge’s “dismissive tone towards the government suggests that there is little they can do to persuade her.”
All eyes will be on Cannon again at a hearing under Section 4 of the Classified Information Procedures Act (CIPA). There, she will decide on what classified material in discovery can be used at trial.
Longtime Harvard Law Professor Laurence Tribe hopes Tuesday’s order “will trigger a motion to remove her.” “The 11th Circuit might well agree this was the last straw. Compromising national security is a bridge too far,” he wrote.
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