Donald Trump and the First Amendment Win the Day on Redacted Filings Release

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Former President Donald Trump received a procedural win in the classified documents case styled United States of America v. Donald J. Trump, Waltine Nauta, and Carlos de Oliveira. Special Counsel Jack Smith sought to preserve the redaction of court filings of discovery documents, which contained information about government witnesses. In a surprising show of solidarity, news organizations, including The Associated Press, The New York Times, The Washington Post, CNN, Fox News, the Miami Herald, and The Palm Beach Post filed a motion to intervene, urging the court to make sure the redactions were fully justified. U.S. District Judge Aileen Cannon weighed on the side of the First Amendment and ruled that unredacted filings should be released — in part. 

The judge overseeing the federal government’s prosecution of Donald Trump over the former president’s allegedly wrongful retention of documents in his home at Florida’s Mar-a-Lago home in Florida has ruled that unredacted versions of filings containing the names of government witnesses will be made public.

The Tuesday ruling from U.S. District Judge Aileen Cannon says that special counsel Jack Smith failed to make his case to keep the documents redacted.

Cannon wrote in the Order Granting in Part Defendants’ Motion for Temporary Leave to File Redacted Motions:

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.   

In Special Counsel Smith’s response, he made the argument that revealing witnesses will threaten their safety and open them up to intimidation. Cannon wrote that Smith’s response failed to provide the necessary factual basis to justify this claim.

Although substantiated witness safety and intimidation concerns can form a valid basis for overriding the strong presumption in favor of public access, the Special Counsel’s sparse and undifferentiated Response fails to provide the Court with the necessary factual basis to justify sealing. 

Smith also argued that witness testimony could potentially be influenced, and the jury pool might be tainted if this information is made public. Cannon responded:

The Special Counsel also alludes, again in general terms, to the concern that “public disclosure of witness identities or their statements in advance of trial also risks infecting the testimony of other witnesses or unnecessarily influencing the jury pool” [ECF No. 267 p. 2].  Even accepting those rationales for sealing, the Special Counsel’s submission offers nothing in the form of concrete factual support for those rationales or otherwise identifies any supporting evidence in the record to justify granting the Special Counsel’s broad and unspecified requests on those bases.

Trump – Order – FL by Susie Moore

In addition to certain witness information, the judge found that the government failed to adequately support its request to shield the code name of another investigation. 

The judge also denied Smith’s request to shield the FBI code name of a separate investigation, finding that “the Special Counsel fails to identify the information at issue, provide any explanation about the nature of the investigation, or explain how disclosure of the code name would prejudice or jeopardize the integrity of the separate investigation (assuming it remains ongoing).”

Keeping these government witnesses a secret from Trump and his lawyers appears to be a particular need for Special Counsel Smith. News organizations and observers of this case will be waiting with anticipation to see what the unredacted filings might reveal.

Judge Cannon ordered the proposed public version of the partially redacted documents be submitted to her for review by Friday. If the documents meet the demands of her Court Order, the filing will be unsealed for public consumption.

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