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Jack Smith Gets Another Round Of Bad News From Judge Cannon

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OPINION: This article may contain commentary which reflects the author's opinion.


Multiple documents have been ordered to be unsealed by the United States district judge overseeing the prosecution of Donald Trump’s Mar-a-Lago. Concerned about disclosing the government’s intentions to erase classified information, Special Counsel Jack Smith voiced his concerns.

Judgment was unsealed early Monday by Judge Aileen Cannon, who expressed her concern for the public’s right to access court records in a concise, paperless order. The documents were filed by the Special Counsel’s Office on November 22, and they were made public a few hours later.

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.

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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.

An argument advanced by the special counsel in support of his request was that “even disclosing” the “number of categories of classified information that the government seeks to delete from discovery would reveal the contours and extent of the government’s CIPA Section 4 motion.”

Although the Classified Information Procedure Act, or CIPA, states that a judge “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,” Cannon found on November 28 that Smith had not given enough evidence to support filing either of the motions on an ex parte basis because they were not §4 motions in and of themselves and did not “contain or otherwise reveal classified information.”

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According to the judge, the government’s CIPA Section 4 motion could “reveal the contours and extent” by talking about “four categories of especially sensitive classified information.” However, “that bare reference, without more, is not a basis to deviate from the presumption against ex parte filings in our adversarial system of justice,” the judge said.

In a subsequent update on December 1st, Smith clarified that, except for two filings requiring “limited redactions,” the special counsel had not opposed the filings’ public release and that the defense and the government had deliberated over whether or not to unseal various documents in the docket.

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“Moreover,” the judge wrote, “although the Special Counsel suggests that the mere filing of its motion for additional pages might ‘reveal the contours and extent of the Government’s CIPA Section 4 motion,’ because it indicates that ‘four categories of especially sensitive classified information’ will be addressed in the Section 4 motion, that bare reference, without more, is not a basis to deviate from the presumption against ex parte filings in our adversarial system of justice.”

In support of his request, the special counsel expressed concerns that “even disclosing” the “number of categories of classified information that the government seeks to delete from discovery would reveal the contours and extent of the government’s CIPA Section 4 motion.”

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