Trump gets access to sealed documents on witness threats in Mar-a-Lago case

[muriel_volestrangler]

Source: The Guardian

Special counsel prosecutors have produced to Donald Trump a sealed exhibit about threats to a potential trial witness after the federal judge overseeing his prosecution for retaining classified documents ordered the exhibit turned over despite the prosecutors’ objections, a person familiar with the matter said.
...
The prosecutors complied with the order before a Saturday deadline without seeking a challenge – though the justice department would typically be loath to disclose details of an ongoing investigation, especially as it relates to the primary defendant in this case, legal experts said.

The justice department may have decided it was not appealing the order because the exhibit itself is part of a motion from prosecutors asking the judge to reconsider two earlier rulings that would have the effect of making public the identities of dozens of other witnesses who could testify against Trump.



Read more: https://www.theguardian.com/us-news/2024/feb/11/trump-mar-a-lago-case-witness-threats-sealed-exhibit

---

Not good. Trump's lawyers are almost as criminal as he is. Cannon has a lot to answer for. Maybe blood, in the future, or more witness intimidation.

[BlueKota]

1. This is scary. What's being allowed to happen

I thought Smith was against this and was going to appeal it?

[ananda]

9. Yes. I mean WTF!

I don't get this at all.

[onenote]

21. Different order. See post 15

[Baitball Blogger]

27. It is bizarre considering how Florida goes out of its way to shut down public records

to protect the victim's names. I realize Cannon is on a Federal level, but she is really a loose cannon.

[Deuxcents]

2. Witnesses will be scarce in the future if there is no protection.

I don’t understand why someone above Cannon’s pecking order did not step in to not allow this.

[slightlv]

3. With this, witnesses would be crazy to testify.

I was incensed last night at the built-in delay Cannon had given to trump in this case by asking for a full briefing. What happened to that ruling? Did it fall by the wayside? What is Smith doing about this? Is he going to take it to the full circuit? What about this "3 strikes" rule I kept hearing about yesterday against Cannon?

This post really confuses me. Guess I'll dig in deeper at the link, hoping it answers a few of my questions, but this doesn't sound good at this point.

Damn trump. We've lost so many good people so far this year, and it's not even March yet. Why can't a few of these evil fu$$s die and give us a break? (sigh)

[pnwmom]

4. And why aren't multiple US media sources talking about this? Good for The Guardian.

which happens to be British.

[onenote]

22. To the extent US media sources have discussed this, they've screwed it up as did the Guardian.

Last edited Sun Feb 11, 2024, 07:06 PM - Edit history (1)

See post 15.

The talking heads have confused and conflated to different orders. The one that would require witness lists and statements -- that Trump already has been given in discovery-- to be made public has been suspended pending action on a motion for reconsideration. The one that Smith complied with requires him to give Trump and his lawyers access to an exhibit that supports the motion for reconsideration. It doesn't contain witness lists.

[BlueKota]

23. Thank you. That makes me less upset!

[pnwmom]

33. The OP's article was talking about sharing info about THREATS to a WITNESS

with the defense team, even though DOJ objected -- not about sharing lists of witness names.

I think there's good reason for being concerned.

[onenote]

44. Apparently Smith doesn't share your level of concern or he would have withdrawn the exhibit rather than disclose it.

In his motion for reconsideration, Smith argues that Cannon applied the wrong legal standard in initially rejected Smith's argument that the witness lists and witness statements should continue to be protected from public disclosure and also erred by finding that Smith's witness-safety concerns, as described in Smith's initial objection, were too speculative or generalized.

In the motion for reconsideration, Smith responds to Cannon's rulings by providing more legal and factual evidence regarding both the appropriate legal standard and the level of factual support needed to meet that standard. Smith cites numerous cases holding that the case law establishes that evidence of specific threats is not required. He then goes on to discuss reports of judges, court staff, prosecutors and witnesses in other cases involving Trump being harassed. Obviously we don't know exactly what information it contained beyond Smith's description: "The exhibit describes in some detail threats that have been made over social media to a prospective Government witness and the surrounding circumstances, and the fact that those threats are the subject of an ongoing federal investigation being handled by a United States Attorney’s Office." However, to a certain extent, this exhibit was submitted as "belt and suspenders" given Smith's argument that such level of information is not needed to warrant a non-disclosure order. It certainly raises the question as to why specific detail about the investigation would be necessary rather than a sworn affidavit attesting to the fact that there is an investigation but without giving specific detail.

My speculation, and it is only that, is that the Special Counsel was fully aware that it would probably have to turn the exhibit over to the defense. It nonetheless preferred to have to do so pursuant to a court order than to do so voluntarily. And by letting the exhibit come in, Smith strengthens his hand on appeal if Cannon continues to dismiss the concerns about witness safety as too speculative.

[pnwmom]

45. Again, this story wasn't about witness lists. This story was about DOJ asking the judge to keep under seal

and away from Trump's attorneys information about a witness who'd been experiencing threats.

The judge kept the information under seal, but required DOJ to share it with Trump. And DOJ must have turned it over.

I think this was worth covering as a story. It wasn't insignificant.

Here's the filing.

https://www.courtlistener.com/docket/67490070/289/united-states-v-trump/

[onenote]

46. I was responding to your statement that you "think there is good reason to be concerned "

I took that to mean you were concerned that Smith complied with the order directing him to provide the defense with the exhibit Smith attached to support his motion for reconsideration. My point was that if Smith had serious concerns about giving it to the defense he could have withdrawn it or challenged Cannon’s order. The fact he did neither of those things suggests to me he was well aware he probably would have to provide it when he filed it but did so for strategic reasons.

[pnwmom]

28. I don't see the contradiction between the Guardian's piece and what you're saying.

The Guardian made it clear that what was being given to Trump's lawyers was info about threats to a witness -- despite DOJ's objection. Here is the lead paragraph from the Guardian:

Special counsel prosecutors have produced to Donald Trump a sealed exhibit about threats to a potential trial witness after the federal judge overseeing his prosecution for retaining classified documents ordered the exhibit turned over despite the prosecutors’ objections, a person familiar with the matter said.
...

Here is what you wrote in #15.

"The second order is related to the first, but is separate. As part of the Special Counsel's motion for reconsideration, Smith attached an exhibit with information about a specific example of threats being made against witnesses. He filed that exhibit both under seal (not available to the public) and ex parte (not available to Trump or his attorneys). After reviewing the exhibit, Cannon decided to keep it under seal, but to order Smith to provide a copy to Trump so that his attorneys can review it in connection with preparing their response to the motion for reconsideration. It is this exhibit that, barring some further intervention from the courts, Smith was required to provide to Trump and his attorneys by the end of the day yesterday. I haven't seen any indication Smith decided to challenge this order and I wouldn't be surprised if he complied ( notwithstanding certain "experts" confidently predicting he would fight it, largely because these experts themselves seem to be confused about the two different orders. )"

[MustLoveBeagles]

41. Thank you for clearing this up

[Bettie]

32. They're too busy with Hur's

report.

[slightlv]

5. I like the Guardian, but could this be news from yesterday

that is just being posted today? I'm still trying to sort it out!

[cstanleytech]

6. You can bet Trump or someone he orders to will try to intimidate the witnesses in some way and if that happens the

Judge should be removed both from the case and the bench.

[riversedge]

7. I just read this article and found it confusing. Will re-read tonight when house is quiet.

[Fiendish Thingy]

8. This contradicts other reports saying Cannon issued a stay of her order. Nt

[Cha]

11. Thanks.. where did you see that? Would there be any links?

[Fiendish Thingy]

12. Somebody posted it here on DU. Nt

[Cha]

16. OK.. I just googled and the only source

talking about it is The Guardian from an hour ago.

Maybe it just happened... This makes me sick.. HOpe somehow it BACKFIRES on that Magat Cannon.

[muriel_volestrangler]

13. Here's a previous article I can find:

Jack Smith must immediately provide Trump, Mar-a-Lago co-defendants with sensitive document the government claims ‘risks disrupting’ an ongoing investigation

Special counsel Jack Smith must immediately turn over contested information to former President Donald Trump, the judge overseeing the Mar-a-Lago classified documents case ruled in a late Friday order.

In the paperless order posted on the federal docket, U.S. District Judge Aileen Cannon directed the government to provide the 45th president, along with co-defendants Waltine Nauta, Trump’s longtime butler, and Carlos De Oliveira, Mar-a-Lago’s property manager, access to a certain exhibit — while allowing the special counsel to file the disputed exhibit under seal for the time being.

“Upon in camera review of the subject attachment, and mindful of the disfavored nature of ex parte proceedings, the Court reaffirms the Special Counsel’s request to seal the attachment referenced in the Special Counsel’s Motion for Leave but finds an insufficient basis provided to deviate from the adversarial process in this instance,” the court order reads. “The Special Counsel is directed to transmit the exhibit to Defendants on or before February 10, 2024. The exhibit shall remain sealed pending further Court order.”

https://lawandcrime.com/high-profile/jack-smith-must-immediately-provide-trump-and-mar-a-lago-co-defendant-with-sensitive-document-the-government-claims-risks-disrupting-an-ongoing-investigation/

[onenote]

15. No contradiction. There are two orders. One was stayed. The other wasn't even challenged by Smith.

There are two orders in play. The first involves a request to "un-redact" certain information, including witness names and witness statements, that previously were provided to Trump and his lawyers in discovery. They are subject to a protective order that prevents their disclosure to the public unless the Special Counsel consents or the court approves. Trump submitted a discovery-related filing in which, consistent with the protective order, he redacted certain information, but he asked the court to allow it to be made public. It is information that Trump already has access to. Smith opposed un-redacting the information because, among other things, it could lead to attempts to harass or intimidate witnesses or to witness coordination. Cannon initially granted Trump's request, in part because, to be honest, the Special Counsel did a surprisingly bad job in its opposition (among other things, failing to discuss the appropriate legal standard for deciding whether to allow public disclosure). Smith then filed a motion for reconsideration which does a much better job of making the legal and factual case for not un-redacting. Cannon then suspended her order pending a decision on the motion for reconsideration, so for now, nothing is being unredacted.

The second order is related to the first, but is separate. As part of the Special Counsel's motion for reconsideration, Smith attached an exhibit with information about a specific example of threats being made against witnesses. He filed that exhibit both under seal (not available to the public) and ex parte (not available to Trump or his attorneys). After reviewing the exhibit, Cannon decided to keep it under seal, but to order Smith to provide a copy to Trump so that his attorneys can review it in connection with preparing their response to the motion for reconsideration. It is this exhibit that, barring some further intervention from the courts, Smith was required to provide to Trump and his attorneys by the end of the day yesterday. I haven't seen any indication Smith decided to challenge this order and I wouldn't be surprised if he complied ( notwithstanding certain "experts" confidently predicting he would fight it, largely because these experts themselves seem to be confused about the two different orders. )

[Fiendish Thingy]

18. Thank you

So the second order resulted in Trump getting the unredacted witness list that is “sealed” by the court and cannot be disclosed to the public (meaning no one outside of Trump and his defense team)?

[onenote]

20. No. The second order resulted in Trump getting access to the Exhibit to Smith's Motion for Reconsideration

Trump already has the "witness lists" that are the subject of the first order -- the one that has been suspended until the court rules on Smith's motion for reconsideration. What Trump has now been given is the exhibit submitted to support of Smith's argument that witness lists should remain sealed, contains information about an investigation of a threat against a witness. The purpose of the exhibit is to show that the risk of making witness names public is real and substantial. While that exhibit remains sealed, it is not surprising that the judge directed Smith to provide it to Trump and that Smith complied since courts generally don't put litigants in the position of having to respond to a motion without being able to see the evidence submitted in support of the motion.

[GreenWave]

10. And we know blabbermouth gonna blab

Let's say the witness is "Gumby"

Blabbermouth, " (in a quiet voice) I am not telling anyone to (now loud voice) Kill Gumby!

[onenote]

14. As I expected. Smith wasn't going to prevail in keeping the exhibit from Trump.

Trump gets to respond to and oppose the Special Counsel's motion for reconsideration and the exhibit is a key part of that motion. The courts rarely if ever put a litigant in the position of having to respond to a motion without being able to see the evidence supporting the motion.

[bluestarone]

17. Can i ask, Does TFG and lawyers actually have hands on access right now?

If they do, then just what would the penalty be, IF they opened this up before the judge made any decisions?

[onenote]

19. I think you are confusing two different orders.

See post 15.
The first order relates to information that was provided to Trump by the government subject to protective order that limits its disclosure to the public. Trump has argued that the protective order should be lifted with respect to certain information including witness names and witness statements Smith opposed but did such a poor job -- in my opinion -- that Cannon ruled in favor of Trump. But Smith then filed a motion for reconsideration which makes the legal and factual case against disclosure that he didn't make in his initial opposition. The judge has suspended her order that would lift the protective order on the material in question while she considers the motion for reconsideration. And quite properly, she has given Trump an opportunity to respond to the factual and legal arguments made in the motion for reconsideration.

The second order relates to an Exhibit to the motion for reconsideration that contains factual evidence supporting the motion. That was filed both under seal -- it's not available to the public -- and also ex parte -- not given to Trump. But in order for Trump to have a reasonable opportunity to oppose the motion for reconsideration, they need to see the Exhibit that supports the motion, so the judge directed Smith to provide a copy of the Exhibit to Trump and, not surprisingly in my opinion, Smith has complied.

Bottom line, Trump and his lawyers have been complying with protective order regarding the discovery information --- witness names and statements and it is unlikely that they would act unilaterally to violate that protective order. The same goes for the information in the sealed Exhibit. Doing so would open not only Trump but his lawyers to civil or criminal penalties.

[bluestarone]

25. TY Your last sentence has me worried. (should i be?)

Civil OR Criminal penalties. Lots at stake here. i can see TFG or his team releasing this information, if nothing else just to DELAY again. We are in an unbelievable twilight Zone here.

[onenote]

35. They've had it awhile without releasing it and if that was their plan

Why as the court for permission.

I think sometimes folks get carried away. There would be more delays from appeals than releasing information and getting sanctioned.

Notwithstanding what some people say in their posts, the lawyers representing trump in the Florida case are quite competent.

[HariSeldon]

34. I think Cannon's action is inappropriate

And I do wonder if Smith might have anticipated this. First point: Smith had to request leave from Cannon to file the exhibit ex parte; she granted that request. Second point: if Cannon thought the motion for reconsideration with the ex parte exhibit was unfair procedure, she could have stricken the exhibit from the docket; she didn't have to require disclosure to the defense.

By now, Smith knows Cannon is playing fast and loose with Court procedure to benefit Trump -- that's exactly what he's saying she's done in the motion for reconsideration. Maybe he set this up so that if she sustains her Tuesday order about witness lists, the prosecution can cite not only the original error but also this bait-and-switch over ex parte filing as indications of bias by Cannon.

[onenote]

36. Couple of responses

First there was no bait and switch. cannon only granted the request to accept the exhibit on a “temporary “ basis until she had a chance to review it, which she did pretty quickly.

Second, if Smith did wanted to avoid disclosure of the exhibit he could have withdrawn it. Presumably he felt having it as part of the record was more important — particularly if he needed to appeal an adverse decision on his motion. For cannon to strike it would have been prejudicial to Smith’s motion. The appropriate thing was to order its disclosure and give smith the opportunity to fight her order, comply with it or withdraw the exhibit and let consideration of the reconsideration motion proceed

[LetMyPeopleVote]

24. There was no appeal filed to challenge Judge Cannon's order last night

Link to tweet

Context: The order required the defense be given access to an exhibit, submitted ex parte earlier this week, detailing the kinds of threats made against a potential witness.

The ex parte exhibit was part of a broader motion to get Cannon to reconsider her earlier rulings, which could make public the identities of dozens of potential witnesses.

It was a “here’s what could happen if you let your ruling stand” warning.

Judge Cannon decided on Friday the defense should see this exhibit…to potentially reconsider their initial motion to unseal the materials in question.

What happens now? The defense, having reviewed the exhibit, could recognize the risk to witnesses and withdraw their motion to unseal. (They probably will not)

…or Judge Cannon, in light of the exhibit, could reverse her ruling and keep the materials under seal.

If not, as foreshadowed in the filings this week, it will probably end up with the 11th circuit via injunctive appeal.

[Kablooie]

42. Probably because this was primarily a way to delay the trial.

If the motion was appealed it would take months to go through the system up to SCOTUS.
Trump will keep asking for more and more unreasonable demands and Cannon will approve them all in the attempt to delay the trial until after Trump steals the next election.

There's no way this will go to trial before the election.
None of the trials will.
There are just way too many ways for Trump to disrupt everything over and over, taking up months and months of time.

Nope no trials for Trump before the election.
Let's just hope he doesn't succeed in stealing it.

[AllaN01Bear]

26. hem.

so, why does he need the docs when he already knows who the perps are ? so that he can encuarge them more?

[Silent Type]

29. Unfortunately, this is far too common. It's hard to keep evidence from defense.

It’s also a major reason witnesses don’t come forward, fear of retribution. Don’t know how to stop it, and hope it gets worked out. Also, hope witnesses are safe.

[Evolve Dammit]

30. Witness, poll workers, judges, DA's et al are now fair game for lethal threats. When did this happen? Ahem.

Sorry, I'm choking on the imminent threats across the judicial spectrum. When the shooting starts....

[onenote]

37. How so? The witness information hasn't been made public

Cannon has stayed the order that would have required its public disclosure until the motion for reconsideration is decided and if she doesn’t reverse her initial order smith will go to the court of appeals.

[Evolve Dammit]

47. I was speaking of the overall trend towards attacking the aforementioned...

[Novara]

31. Why does the defense need to see information about threats made to a witness?

That's my question. Doesn't seem to be probative to me.

[onenote]

38. Because smith needed to provide concrete evidence that making witness information public

Would create a substantially likely risk of harassment or threats to those witnesses. The better question is why smith chose to use that example. My guess is that it was his strongest example and that he knew he’d have to give it to the defense but wanted to be forced to do so rather than set the precedent of doing so voluntarily.

Put another way, while you might not think it was probative Smith obviously felt it was.

[asiliveandbreathe]

39. You are correct..not good..MSNBC interview Andrew Wiessman..

"So now there is this issue, with respect to divulging the name of someone who is under investigation which could interfere with a criminal investigation," he told the hosts. "We don't know about the underlying facts of that so it is somewhat guesswork."

"What I can tell, you as a — I have been in a prosecutor for many years — that does not get disclosed when you are doing an investigation," he continued. "To me, it is so reminiscent of the same problem she had during the investigation. So, if she continues this route, it will be interesting to see whether Jack Smith gets to the 11th circuit and whether they sort of politely recuse her, essentially, which happens when the circuit hears the case and basically says 'When we send this back, we think that the better course is for a different judge to hear it.'"

I fear for any witness and their family..

[Botany]

43. Shades of Trump's mentor Roy Cohn ... get to the jurors or in this case the witnesses to try to effect

….. the outcome of a trial. Judge Cannon might as well be sitting on the defense table.