Judge Aileen Cannon (left) talks during a Senate Judiciary Committee oversight nomination hearing on July 29, 2020 (U.S. Senate via AP), while Special Counsel Jack Smith (right) discusses an indictment of former President Donald Trump at a Department of Justice office in Washington on August 1, 2023. (AP Photo/Jacquelyn Martin.)
The special counsel can “redact, substitute, or delete” two categories of classified information and “most” of a third type from shareable discovery, according to the judge in former President Donald Trump’s Espionage Act prosecution on Friday.
According to U.S. District Judge Aileen Cannon, Jack Smith’s motions were successful in categories 3 and 4—tthe first dealing with “documents relating to a potential government witness” and the second with “classified information which the Special Counsel seeks to delete from discovery in its entirety.”
Cannon, a Trump appointee, likewise granted “most of the Category 2 requests” made by Smith, but not all.
“Category 2 contains a subset of After-Action Reports (‘AARs’) and related emails from which the Special Counsel seeks to redact limited words and phrases,” the judge stated in his ruling. “The vast majority of the demands are not topically related to the charged papers, making them neither relevant nor useful to the defense. A very small fraction of redaction requests, however, cannot be handled at this time.”
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According to the judge, the words and phrases that Smith wishes to remove from the reports are closely related to the requests made in the Defendants’ Motions to Compel. Furthermore, they may also have relevance to the essential elements of the charges that Trump faces for willful retention of national defense information.
The judge stated that she will defer making a decision on certain requests mentioned in the Classified Order until the defendant’s Motions to Compel are resolved and a follow-up ex parte CIPA § 4 hearing is conducted with the Special Counsel to clarify the nature of the information in question.
In a recent incident at Mar-a-Lago, a judge’s decision has been criticized by a former White House lawyer, who called it “embarrassing.” The lawyer also suggested that the judge should recuse themselves from the case.
In December, the judge and Jack Smith had a disagreement over the unsealing of certain details regarding the CIPA § 4 motion. The special counsel argued that revealing these details would expose the government’s intentions to remove classified information from discovery.
Smith was not able to successfully conceal the number of categories from the defense. However, he had more success on Friday when it came to his requests to “redact, substitute, or delete.” Despite this, the special counsel did not achieve a complete victory.
Towards the end of her order, Cannon did acknowledge Jack Smith’s pending motion for reconsideration. It’s worth noting that the special counsel had previously threatened to appeal to the U.S. Court of Appeals for the 11th Circuit if the judge didn’t rectify her “clear error” that could potentially expose government witnesses during the discovery process.
According to Cannon, the Court has decided to hold off on docketing the Special Counsel’s proposed public stand-alone brief regarding Defendant Trump. This brief was previously submitted ex parte and under seal as an attachment to the Special Counsel’s Third Classified Supplement to CIPA § 4 Motions. The Court will wait until it has resolved the Special Counsel’s pending Motion for Reconsideration.
One prosecution witness, known as Trump Employee 5, decided to reveal their identity when it became apparent that the judge was inclined to disclose the witnesses’ identities, despite Smith’s objections.
