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Special Counsel Jack Smith is reportedly scheduled to meet behind closed doors with U.S. District Judge Aileen Cannon, who is presiding over former President Donald Trump’s classified documents case.
Smith has brought two indictments against Trump. He is scheduled to meet with Cannon on Jan. 31 without Trump or his legal team present.
“In Florida, Trump faces 32 counts of unlawful retention of national defense information and eight other charges that include making false statements and a conspiracy to conceal them,” Newsweek reported on Monday.
Newsweek added: “The ‘ex parte’ hearing on January 31 pertains to objections filed by Trump lawyers in which they have asked for access to documents that are off-limits because of sensitive information. In a motion filed in December last year, Trump’s lawyers said they ‘seek attorneys’-eyes-only access to these filings so that we can challenge [Smith’s] assertions in adversarial proceedings.’ An ex parte meeting is conducted without parties affected by the proceeding and without a transcript, meaning details of Cannon and special counsel’s conversations will not be made public.”
The outcome of the hearing holds substantial importance for the trial; if Cannon were to rule in Trump’s favor, either entirely or in part, the Justice Department (DOJ) would probably pursue an appeal.
The appeal would be considered interlocutory, meaning that additional steps or decisions would be required before the trial commences. This could potentially lead to a postponement of the current trial date, set for May 20th of this year.
Former U.S. attorney Joyce Vance stated that if Cannon rejects the prosecution’s argument, any appeal from Smith’s office would be carried out expeditiously.
“While we won’t learn much if anything about what happens when the Special Counsel’s team sits down with Judge Cannon, we’ll find out if they object to anything that happened fairly quickly, in the form of a notice of appeal to the 11th Circuit,” Vance said.
Important to the case and the Wednesday hearing is the Classified Information Procedures Act, which, according to the DOJ website, “applies both when the government intends to use classified information in its case-in-chief as well as when the defendant seeks to use classified information in his/her defense.”
The act obliges Smith and his team to identify potentially sensitive documents, with the court’s approval required for their exclusion from discovery.
Section 4 of CIPA allows the government to establish the sensitivity of documents through a private, ex parte meeting.
Submitting documents to the case under Section 4 also serves the purpose of mitigating a procedure commonly referred to as “graymail.” In essence, this occurs when defense lawyers demand that the government provide information with the expectation that prosecutors may dismiss charges to safeguard national secrets.
Vance also found the timing of the hearing unusual, as Smith’s team filed its section 4 motions on December 6, and Trump’s lawyers responded on December 20.
In December, Cannon ordered several documents in the case to be unsealed, which led Smith to voice concerns.
The Special Counsel’s Office filed the documents on November 22, and a few hours later they became public.
Smith sought permission to submit two motions, according to MSN: one to file the motion under seal and another to exceed page limits (for the judge’s sole view).
Smith claimed that the government’s “upcoming CIPA Section 4 motion, which will include highly sensitive classified information,” and that it “provides sensitive information about the contents of the CIPA Section 4 motion” were the specific topics of his request to exceed the page limits.
Along with Trump’s co-defendants, valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, he recommended filing a single large motion to “protect four separate categories of classified information from disclosure” for the sake of judicial economy instead of filing multiple smaller ones.
