Trump Codefendants Demand To See Nuclear Secrets Their Boss Stole

// This afternoon, Donald Trump’s lawyers made their case to Judge Aileen Cannon that the prosecution of the former president and his henchmen for retaining classified documents at Mar-a-Lago and obstructing a subpoena must be delayed due to government misconduct. In their telling, the Special Counsel’s Office (OSC) has been sluggish in its production of both classified and unclassified discovery and deceived the court about its readiness to go to trial.

As independent journalist Marcy Wheeler points out, this is mostly bullshit. Recent responses to sealed defense motions make it clear that Trump’s complaints about supposedly delayed production include documents produced in duplicate at the defense’s request and Jencks materials, which were actually disclosed early. Similar whining about delayed access to highly restricted classified documents omits to mention that the materials were available earlier, and were placed in the secure review facility as soon as defense counsel asked for them. In other words, it was Trump’s lawyers who were responsible for the delay, not the DOJ.

googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-top-300x250" ); });

We’ll see if Judge Cannon falls for it this afternoon. She bans electronics in her courtroom and designates no press overflow room, so reporting out of Fort Pierce takes a while. But this morning she issued a ruling that will make it harder for the government to prosecute this case by forcing prosecutors to argue on a document by document basis that classified evidence should be withheld from co-defendants Walt Nauta and Carlos De Oliveira.

Sponsored The Smartfirm Playbook - Thriving In Today’s Legal Landscape Strategically using software and automation to boost efficiency and streamline operations, allowing for a laser-focus on practicing law. From Lawmatics  

For context, some of the classified materials recovered from Trump’s pool shed and personal office are so sensitive that the agency “owners” resisted allowing them to be viewed in a secure facility outside DC. Nevertheless, counsel for Trump’s valet and a Mar-a-Lago groundskeeper insist that their clients require access to every one of the government’s nuclear secrets their boss purloined and then had them shift around the property to evade his own lawyer.

The charges against Nauta and De Oliveira involve obstruction, false statements, and conspiring to conceal documents “bearing classified markings,” and so the government argued that they should be presumed not to need access to the classified evidence itself. Instead their counsel, who have security clearances, should be granted access and then make an argument to the court that particular documents should be disclosed to the clients as necessary for their defense.

googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-middle-300x250" ); }); googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-storycontent-440x100" ); }); googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-in-story-youtube-1x1" ); });

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.”

This morning Judge Cannon rebuffed this request, accusing the government of flipping the presumption of disclosure in the Federal Rules of Evidence on its head:

Sponsored Sponsored The Smartfirm Playbook - Thriving In Today’s Legal Landscape Strategically using software and automation to boost efficiency and streamline operations, allowing for a laser-focus on practicing law. From Lawmatics   Sponsored Pioneering Ethical, Trustworthy Generative AI For Legal Research As a longstanding leader in legal AI, LexisNexis now pioneers ethical generative AI for legal research, enabling professionals to improve outcomes while upholding responsible AI… From LexisNexis   Sponsored Countdown To Compliance Webinar: SEC Private Fund Reforms Ontra & Daniel Kahl, Partner at Kirkland & Ellis and former Acting Director of the SEC Division of Examinations, explore private fund adviser reforms. From Ontra   Sponsored Adding Value through Digital Transformation: Harness the Power of CLM and ELM Unleashing the Potential of Digital Transformation: A Deep Dive into CLM and ELM” explores the challenges faced by in-house counsel and the critical facets of… From CounselLink  

Quite the contrary, what the OSC advances here, in almost blithe terms, is that it can satisfy its discovery obligations by giving discovery to the agent-attorney and then banning that attorney (on penalty of criminal prosecution) from sharing any of it with his principal, the defendant. This broad theory is not consistent with agency principles or with Rule 16, Brady, or the Jencks Act. Fed. R. Crim. P. 16(a)(1)(E) (requiring government to permit defendant to review items “material to preparing the defense” that are in government’s possession, custody, or control).

She shrugged off the argument that the Classified Information Procedures Act (CIPA) vests substantial discretion in the trial judge to craft discovery rules which protect government secrets. And she brushed aside the government’s references to several non-Fifth Circuit precedents as “a handful of non-binding examples” which “do not displace the foundational principal undergirding Rule 16 that discovery is available to the defendant.” The tone is not exactly hostile — but it’s not not hostile either.

In practical effect, this means that the government will now have to either let these two defendants see the classified evidence, or argue at a hearing under CIPA § 4 that each individual document must be withheld. But here, Judge Cannon also tips her weird hand.

googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-bottom-300x250" ); });

After a pedantic section on CIPA for beginners, she writes: “Section 4, by contrast, is the place in CIPA where the Court, following a ‘sufficient showing’ by the United States (potentially on an ex parte basis), decides whether to withhold from a defendant discoverable information or, alternatively, to replace such discoverable information with substitutes or statements of relevant facts to be proven by that classified information.”

In fact, the government’s arguments for withholding are not made “potentially on an ex parte basis.” They’re presumptively ex parte under the plain language of the statute the judge just lectured the special counsel for “blithely” ignoring.

Sponsored Sponsored Are You Using AI In Your Day-to-Day Practice? Please share your thoughts in this (always) brief and anonymous survey. From Above the Law   Sponsored Adding Value through Digital Transformation: Harness the Power of CLM and ELM Unleashing the Potential of Digital Transformation: A Deep Dive into CLM and ELM” explores the challenges faced by in-house counsel and the critical facets of… From CounselLink  

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.

All of which suggests that Judge Cannon will be receptive to the defendants’ efforts to “graymail” the government into dropping the case rather than disclosing highly classified evidence to criminal defendants or, worse still, on the public docket.

This stands in stark contrast to Judge Chutkan, who just this morning dropkicked Trump’s attempt to unseal the government’s CIPA § 4 filing in the DC election interference prosecution.

“[T]he defense identifies no case in which any court has ordered the relief they seek here, and this court is aware of none,” she wrote, adding that CIPA “expressly displaces the presumption against ex parte proceedings and provides for limits on defendants’ access to classified material.”

This is exactly what a normal judge would do. And the juxtaposition highlights so clear that, while Judge Cannon is trying hard to color inside the lines since her humiliating reversal by the 11th Circuit the first time this case landed on her docket, she’s still got her thumb all the way on the scale for the guy who put her on the bench.

Can’t wait to see what comes out of today’s hearing in Fort Pierce!

US v. Trump [SDFL Docket via Court Listener]
US v. Trump [DDC Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

Topics

Aileen Cannon, Carlos De Oliveira, Courts, Crime, Donald Trump, Jack Smith, Walt Nauta