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Judge Aileen Cannon (left) during a Senate Judiciary Committee oversight nomination hearing on July 29, 2020 (U.S. Senate via AP), Special counsel Jack Smith (right) speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington. (AP Photo/Jacquelyn Martin)
The special counsel can âredact, substitute, or deleteâ two categories of classified information and âmostâ of a third category from shareable discovery, the judge in former President Donald Trumpâs Espionage Act prosecution ruled Friday.
U.S. District Judge Aileen Cannon wrote that Jack Smithâs motions prevailed as far as categories 3 and 4 are concerned â the first dealing with âdocuments relating to a potential government witnessâ and the second with âclassified information which the Special Counsel seeks to delete from discovery in its entirety.â
Cannon, a Trump appointee, also granted âmost of the Category 2 requestsâ made by Smith, but not all.
âCategory 2 contains a subset of After-Action Reports (âAARsâ) and related emails from which the Special Counsel seeks to redact limited words and phrases,â the judge wrote. âThe vast majority of the requests are not topically related to the charged documents and thus neither relevant nor helpful to the defense. A very limited number of redaction requests, however, cannot be resolved at this stage.â
The judge said that the âwords and phrasesâ Smith wants to redact from reports are âbound up in requests made in Defendantsâ Motions to Compel, and/or (2) have potential bearing on essential elementsâ of the willful retention of national defense information charges Trump faces.
âThus, pending resolution of Defendantâs Motions to Compel and a follow-up ex parte CIPA § 4 hearing with the Special Counsel to clarify the nature of the information at issue, the Court reserves ruling on the few requests identified in the Classified Order,â she wrote.
Similarly, category 1 â âtwo sensitive intelligence reports directly related to a document charged in one of the unlawful-retention countsâ â cannot be ruled upon at this time, Cannon said. Only after the judge rules on Trumpâs motions to compel discovery â and/or only after another Classified Information Procedures Act (CIPA) § 4 hearing â will the judge address category 1, Cannon said.
Back in December, the judge and Jack Smith clashed as the special counsel insisted that unsealing certain details about the CIPA § 4 motion to âredact, substitute, or deleteâ itself would reveal the âcontours and extentâ of the governmentâs plans to delete classified information from discovery.
Asserting a need to âprotect four separate categories of classified information from disclosureâ to criminal defense lawyers, and to Trump and his co-defendants, valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, Smith argued that âeven disclosingâ the ânumber of categories of classified information that the Government seeks to delete from discovery would reveal the contours and extent of the Governmentâs CIPA Section 4 motion.â
While Smith did not succeed in hiding the number of categories from the defense, he had better luck on Friday on his âredact, substitute, or deleteâ requests. Still, it was not a total win for the special counsel.
At the end of her order, Cannon did acknowledge the existence of Jack Smithâs pending motion for reconsideration. Recall that the special counsel threatened to appeal to the U.S. Court of Appeals for the 11th Circuit if the judge did not correct her âclear errorâ threatening to name government witnesses through discovery.
âThe Court also reserves docketing the Special Counselâs proposed public stand-alone brief as to Defendant Trumpâpreviously submitted ex parte and under seal as an attachment to the Special Counselâs Third Classified Supplement to CIPA § 4 Motionsâuntil the Court has resolved the Special Counselâs pending Motion for Reconsideration,â Cannon wrote.
At least one witness for the prosecution, Trump Employee 5, revealed his identity after it appeared the judge was leaning towards outing witnesses regardless of Smithâs protestations.
