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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 personal 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 âforthcoming Order Denying Defendantsâ Motions for Access,â an order she indicated would apply to Trump as well.
Noting that Jack Smith has provided Nauta and De Oliveiraâs lawyers with âclassified discovery produced to date,â Cannon explained that the co-defendantsâ asserted need to personally review classified materials fell flat for multiple reasons. Cannon began by highlighting the differences in the charges against Trump and the 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 âfor TRUMP to keep classified documents he had taken with him from the White House and to hide and conceal them from a federal grand juryâ. Defendant Nauta faces four additional document-related charges, all involving efforts to allegedly withhold or conceal âdocuments with classification markingsâ 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 ârelating to the national defenseâ. 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 âmade a sufficient showingâ that Nauta and De Oliveiraâs personal review of classified documents would not help their cause â and the co-defendantsâ lawyers (who have had access to classified discovery) failed to point to a document or documents that âwould be helpful in counteringâ the conspiracy charges their clients face:
Third, Defendants Nauta and De Oliveira fail to rebut the Special Counselâs showing as to the subject materialsâ lack of helpfulness. Defense counsel for Nauta argues, in general terms, that his clientâs personal review of the substance of the documents would be helpful in countering the Special Counselâs intent-related arguments as to the conspiracy charged in Count 33. Even accepting the defenseâs 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 thatâif made available to them for personal reviewâwould be helpful in countering the allegation that they conspired to help Defendant Trump âkeep classified documents he had taken with him from the White Houseâ and âhide and conceal them from a federal grand juryâ.
Beyond this, the defense made arguments that âexist at too high a level of abstraction to rebut the Special Counselâs showing,â Cannon wrote.
âDefendant 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 markingsâmaking review of the entirety of the documents helpful to the defense or to countering the Special Counselâs case,â the judge said. âAlthough 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.â
In short, Cannon ruled that âthe Special Counsel has met his burdenâ under CIPA § 4 to withhold classified materials from Nauta and De Oliveira, except a âdocument/image charged in Count 32 as to Defendant Nauta.â The judge also indicated a ruling against Trump is on the horizon on the issue of deleting âfour discrete âcategoriesâ of classified informationâ from discovery.
Jack Smith had additionally asked that the court âredact, substitute, or delete from cleared counsel and Defendants Nauta and De Oliveiraâ those four categories, but Cannon said that she would address that request in a separate order unfavorable to Trump [emphasis ours]:
The Special Counselâs additional request as to the four âcategoriesâ of information is addressed in a forthcoming Order on Special Counselâs CIPA § 4 Motion as to Defendant Trump. This ruling is made in conjunction with the Courtâs forthcoming Order Denying Defendantsâ Motions for Access.
Read the order here.
