Special counsel is using inconsistent arguments with regards to which information should be hidden from the public, judge says.

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Special counsel Jack Smith speaks at the Department of Justice in Washington, on June 9, 2023. (Mandel Ngan/AFP via Getty Images)

By Zachary Stieber

The federal judge overseeing one of the criminal cases against former President Donald Trump on May 19 expressed concern and disappointment with special counsel Jack Smith.

U.S. District Judge Aileen Cannon, an appointee of President Trump, said that Mr. Smith and his team have taken inconsistent positions during the case as it pertains to keeping some information sealed, or hidden from the public.

“In two separate filings related to sealing, the special counsel stated, without qualification, that he had no objection to full unsealing of previously sealed docket entries related to allegations of prosecutorial misconduct. In light of that repeated representation, and in the absence of any defense objection, the court unsealed those materials consistent with the general presumption in favor of public access,” Judge Cannon of the U.S. District Court for the Southern District of Florida wrote in an order.

The materials that were unsealed, though, contain information such as grand jury details that the special counsel has and continues to say, in all other filings, should be kept sealed. Judge Cannon asked for an explanation of the inconsistency.

“In response to those inquiries, counsel explained that the special counsel took the position on unsealing in order to publicly and transparently refute defense allegations of prosecutorial misconduct raised in pretrial motions,” Judge Cannon wrote. “Fair enough. But nowhere in that explanation is there any basis to conclude that the special counsel could not have defended the integrity of his Office while simultaneously preserving the witness-safety and Rule 6(e) concerns he has repeatedly told the court, and maintains to this day, are of serious consequence, and which the court has endeavored with diligence to accommodate in its multiple orders on sealing/redaction.”

Judge Cannon described herself as being “disappointed in these developments.”

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“The sealing and redaction rules should be applied consistently and fairly upon a sufficient factual and legal showing. And parties should not make requests that undermine any prior representations or positions except upon full disclosure to the court and appropriate briefing,” she added.

The case was brought against President Trump over his alleged mishandling of sensitive documents.

The order came after Mr. Smith and President Trump filed competing proposals for redactions, in response to a May 9 order from the judge that directed the parties to submit the proposals. The order concerns several motions filed by President Trump, including a motion to dismiss the case based on allegations of prosecutorial misconduct, which have not yet been placed on the docket. The proposals for redactions are also not yet public.

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Both parties and the judge agree that the names of potential witnesses or information that would clearly identify them should be kept hidden, along with “ancillary names” and personal identifying information such as addresses. Redactions agreed upon by both parties were accepted by the judge in the new order, with a few exceptions. President Trump’s proposed redactions to some witness statements were rejected.

“No basis is provided for these redactions, and the court has previously denied requests to redact the substance of potential witness statements are relied upon in pre-trial motions,” Judge Cannon said.

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The judge also turned down a request by the special counsel to redact some of the same information.

 

Judge Cannon said that for redactions where the parties disagree, she would “accept for now” President Trump’s characterization of portions of the material falling under privilege, pending her review of privilege arguments. She would also accept the special counsel’s position on Rule 6 of the Federal Rules of Criminal Procedure, despite the concerns outlined in the order.

The filings with the authorized redactions are now expected to be docketed in the coming days.

Rule 6 states, in part, that a number of people, including government attorneys, must not disclose any matters occurring before a grand jury, with limited exceptions.

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