BREAKING: Judge Aileen Cannon Does … The Right Thing?

Screen Shot 2022-09-16 at 1.29.58 PMThis morning the Supreme Court proved itself to be the dumpster fire we always knew it was. Justice Thomas didn’t even bother to recuse from adjudicating on the propriety of a coup plot that involved his own wife!

But meanwhile in the Southern District of Florida, Judge Aileen Cannon has agreed to do the obviously appropriate thing with regard to classified evidence in the Trump documents case.

Twice, even!

These uncharacteristic acts of judicial restraint came in the context of two  disputes under the Classified Information Procedures Act (CIPA). In the first instance, Trump’s co-defendants, Walt Nauta and Carlos De Oliveira, demanded equal access to all discovery documents, including those that are classified.

Nauta and De Oliveira are charged with obstructing the investigation by lying about moving boxes of government documents into and out of the Mar-a-Lago storage locker and then attempting to delete the security camera footage that showed them doing it. None of that has anything to do with the nature of the documents inside the boxes. And yet Trump’s valets demanded to see all the classified evidence — some of it so secret that the agency owners had to be functionally coerced into putting it into a SCIF in Florida — as part of their purported defense.

The government argued back in November that the court should withhold every bit of classified evidence from Trump’s hapless body men:

None of the offenses charged against Nauta or De Oliveira requires proof that any of the documents in this case contained national defense information. Access to the documents by defense counsel is adequate to confirm that the documents are plainly and conspicuously marked classified. Whether the documents contained national defense information is simply not pertinent to whether Nauta and De Oliveira participated in a collective effort to help defendant Donald J. Trump “keep classified documents he had taken with him from the White House” and “hide and conceal them from a federal grand jury.”

And on Wednesday, after extensive briefing and two days of oral arguments, the court finally agreed that Nauta and De Oliveira do not need to see the classified evidence to participate in their own defense. She also seems to have finally grokked that the arguments their lawyers are making in an effort to chew clock are just stupid.

“The other defense arguments exist at too high a level of abstraction to rebut the Special Counsel’s showing,” she sighed, adding that “Although 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.”

There’s no argument Trump, who is charged with retaining national defense information, should not get access to most of the classified evidence against him. So instead his lawyers devoted themselves to throwing a wrench into the CIPA process itself.

CIPA was passed in 1980 to avoid the problem of graymail. To wit, the government was often forced to drop prosecutions when defendants threatened to put classified evidence on the public docket. And so Congress enacted a multi-step process for courts to handle classified evidence so as to protect national security while still prosecuting wrongdoers.

CIPA § 4 provides that:

The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

It is widely understood that the government’s filing under § 4 will be ex parte. Obviously, it would defeat the entire purpose of this section for the government to make an extended argument as to why a particular piece of classified evidence must be withheld from the defendant, and then have to turn that argument over to the defendant. So naturally Trump demanded exactly that, insisting that it was his right to see the government’s CIPA § 4 filing describing the classified evidence it would like redacted. And because Judge Cannon has allowed Trump to waste months of time on ridiculous arguments — even as she squats on the May trial date and refuses to take the case off the calendar — she let Trump argue about this at length.

But this week she finally tapped out. After extended briefing and oral argument, she grudgingly agreed to let the government file its motion ex parte.

“Although the import of the Special Counsel’s position effectively changes the unambiguous discretionary language of CIPA § 4 into a prohibition on adversarial litigation in this context—and although Defendants raise compelling arguments in favor of exercising judicial discretion to permit attorneys’-eyes-only access to the CIPA § 4 filings under the circumstances of this case—the Court ultimately denies Defendants’ Motions after concluding, based on a thorough review of the Special Counsel’s instant CIPA § 4 submissions that it can fairly resolve the CIPA § 4 requests in an ex parte posture, and in a manner that does not impair Defendants’ rights,” she grumbled.

She could hardly have done otherwise, since that’s long been the settled rule in the 11th Circuit. And so, after venting her spleen at the special counsel for construing the statute as imposing a non-discretionary obligation on the court to conduct the § 4 review ex parte, the court conceded that her hands were tied.

Nevertheless, in light of the unrebutted weight of authority in this Circuit and others—and following a thorough review of the subject materials, extensive colloquies with defense counsel to understand their theories of the case, and careful consideration of the good-faith arguments raised by Defendants—the Court determines at this juncture that it can resolve the Special Counsel’s Section 4 Motions in an ex parte posture.

This saved Jack Smith the trouble of another trip to the 11th Circuit. It also saved Judge Cannon another humiliating slapdown that would have reaffirmed her status as the laughingstock of the legal community.

But she did give Trump a whole lot of delay to put time back on the clock, so … MISSION ACCOMPLISHED.

US v. Trump [SDFL Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.


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