Left: Donald Trump speaks during a commit to caucus rally in Iowa back in December 2023 (AP Photo/Charlie Neibergall). Right: Special counsel Jack Smith speaks to the media about the indictment of former President Donald Trump in August 2023 (AP Photo: J. Scott Applewhite).
Remember when Jack Smith clashed with Judge Aileen Cannon in the Mar-a-Lago case over the naming of witnesses? Donald Trump’s lawyers do, and now they’re asking the judge in the Jan. 6 case to order the special counsel to explain his alleged “about-face” in an apparent defense bid to prevent “sensitive witness statements” from spilling out before the election.
Just one week ago, U.S. District Judge Tanya Chutkan, over the defense’s protestations, allowed the special counsel to submit an immunity brief under seal that could span 180 pages or more.
Days later, Smith previewed his immunity brief in the wake of Trump v. United States and his redaction rationale.
“In the proposed redacted Motion, the Government has redacted the names of individuals (aside from those whose names appear publicly in the superseding indictment, such as the defendant and Vice President Michael R. Pence),” said the special counsel’s motion for leave to file. “In the Motion’s text, the Government has not redacted quotations or summaries of information from Sensitive Materials, but in the footnotes has redacted citations that reveal the non-public sources of such information, including grand jury transcripts, interview reports, or material obtained through sealed search warrants.”
Later on, the special counsel appeared to anticipate that the defense would claim he was being a hypocrite on the issue of witness safety, drawing a distinction between the “posture” of the Mar-a-Lago case and the status of the Jan. 6 case:
The procedural posture and legal standard here are different than in United States v. Trump, 23-cr-80101 (S.D. Fla.), in which the issue of sealing and redactions arose in connection with the defendant’s motion to compel discovery. Under binding circuit precedent in that case, documents filed in connection with discovery claims were appropriately sealed upon a showing of good cause, see Chicago Tribune Co. v. Bridgestone/Firestone Inc., 263 F.3d 1304, 1310-1313 (11th Cir. 2001) (per curiam), a standard that readily encompassed witnesses’ identifying information and the content of their statements, see Gov’t Mot. for Reconsideration, United States v. Trump, 23-cr-80101, ECF No. 294 at 10-16 (S.D. Fla.) (filed Feb. 8, 2024). Here, by contrast, in light of the importance of content of statements to the immunity analysis, “specific reasons” do not support maintaining the content of statements under seal. Johnson, 951 F.2d at 1278. Despite he different posture and legal standard in the Southern District of Florida case, the Court there ultimately decided to redact names and identifying information but not the substance of witness statements. See Trump, 23-cr-80101, ECF No. 438 at 17-20.
Recall that at one point of the Mar-a-Lago prosecution, before Cannon dismissed it, Trump’s defense had pushed for “naming all witnesses.” Cannon initially warmed to the idea of naming Mar-a-Lago witnesses — prompting one to come forward — before the judge reversed herself in the face of an appellate threat.
In that context, Trump’s defense said that it was “baseless” and “absurd” of the special counsel to claim that they didn’t care about witness safety. Now they are attempting to turn the tables by claiming Smith is the one putting witnesses at risk by seeking to publicize their statements ahead of the election in a “politically motivated manifesto[.]” The defense asked Chutkan to order the special counsel to “show cause why their proposed public disclosure of voluminous purportedly sensitive witness statements is consistent with the risks of witness safety, potential juror taint, and the integrity of the proceedings that they have cited previously to this Court and in the Southern District of Florida.”
“While the Presidential immunity filing contains few, if any, new allegations not already covered in other politically motivated and inaccurate lawfare efforts that President Trump’s opponents have improperly funded and disseminated, it is irresponsible for the prosecutors to so quickly abandon the safety and privacy interests that they previously assigned great weight in this case and in the Southern District of Florida,” the defense said Tuesday, “Accordingly, the Court should require the Office to make consistent redactions regarding identity-related information and to show cause why their proposed public disclosure of voluminous purportedly sensitive witness statements will not pose risks to potential witnesses and unfairly prejudice the adjudication of this case.”
The defense further argued that Smith’s proposed “redactions and pseudonyms” do little to “meaningfully mitigate the privacy and safety issues” at play. To that end, Trump attorneys John Lauro, Todd Blanche, Gregory Singer, and Emil Bove directly called back to the Mar-a-Lago dispute, when the special counsel insisted on anonymizing “even ‘Ancillary Names”” to protect the privacy of those individuals. The defense asserted that Smith is taking a “different view” now that the “politically motivated mission” of filing the massive immunity brief can realistically impact the 2024 election and “unfairly prejudice the adjudication of this case.”
“Therefore, to the extent the Court is inclined to grant the identity-related portion of the Motion, the Office should be required to redact all references to the titles and positions held by the witnesses who are not specifically named in the Superseding Indictment,” the defense concluded. “As this issue repeats itself numerous times throughout the Office’s sprawling brief, the burden of applying these redactions in the first instance should revert to the Office.”
Read the Trump filing here.
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