Special Counsel Jack Smith (right) is pushing back on Judge Aileen Cannon’s (center) ruling to unseal the witness list in the classified documents case against former President Donald Trump (left).
Judge Aileen Cannon this week ruled the witness list in Trump’s document case should be unsealed.Special Counsel Jack Smith is fighting back against the move to make the protected list public.Legal experts told BI Cannon’s ruling goes against precedent and will likely be overturned on appeal.
Trump-nominated judge Aileen Cannon this week sided again with the former president’s legal team when she ruled the government’s witness list in the Mar-A-Lago classified documents case should be unsealed.
Cannon wrote in a Tuesday filing that public interest in the case outweighs the existing protective order keeping the names secret, writing that the Special Counsel hasn’t presented a strong enough argument to keep the names sealed.
Special Counsel Jack Smith on Thursday pushed back on Cannon’s ruling, filing a motion for reconsideration and arguing that unsealing of the names — which are already known to the defense but have been kept from the public due to safety concerns and potential impact on the investigation — could deter further witness cooperation with the investigation, writing: “the Court applied the wrong legal standard that, in practice, will expose witnesses and others to intolerable and needless risks.”
Multiple people, including witnesses and judges associated with the numerous civil and criminal cases against Trump, have faced significant threats and harassment as the former president’s legal battles play out in court.
Supporters of the former President have even been charged with threatening violence against Judge Tanya Chutkan, who is overseeing the federal election interference case playing out in Georgia, as well as the jurors who voted to indict him in the case.
Judge Cannon’s move to reveal the witness list in the classified documents case against Trump has drawn sharp criticism from many in the legal world, with two experts telling Business Insider her ruling will likely be overturned on appeal.
A ‘clear bias for Trump’
Neama Rahmani, a former federal prosecutor, told BI the move is “another wrong ruling by Judge Cannon.”
“It’s really one after another, and the way she’s handled this case shows her clear bias for Trump and the defense,” Rahmani said. “Obviously Trump appointed her, but he couldn’t have gotten a better draw. Really at every stage of the proceedings so far, she’s allowed Trump to delay — so there’s almost no chance that that trial is going to happen before the November election. And of course, if Trump is elected and he regains control of the White House, the prosecution goes away.”
Cannon has already been reversed once on appeal by the 11th Circuit in this case, when she moved to appoint a special master to oversee the review of classified documents seized from Mar-A-Lago. The 11th Circuit court sided with the Department of Justice, ultimately determining that Cannon lacked the authority to assign a special master to the case.
“This is the second time that Jack Smith moved for reconsideration of a Cannon order, and the last time, it was ultimately taken on appeal to the 11th Circuit, which sided with Smith and gave a ‘bench slap’ to Cannon,” Andrew Lieb, a legal analyst and New York litigation attorney, told BI.
Lieb added that there is no legal reason to unseal the witness list or their statements, “as it puts witnesses in danger and potentially causes them to refuse to testify further or change their testimony out of fear, which is the precise reason to seal. Plus, it can influence potential juries.”
The precedent of protective orders
Rahmani said the testifying witness list will eventually be revealed to the public, as it should be, but the timing and manner of releasing information is key. Preemptively releasing the names of the cooperating witnesses, not all of whom will testify, is out of line with historical court precedent to err on the side of protecting people who cooperate with criminal investigations.
“There’s a reason protective orders exist, and the government has made it clear that this would compromise the investigation and put the witnesses in danger,” Rahmani said, adding that he believes the 11th circuit will reverse Cannon’s ruling based on existing legal precedent.
He added: “I think judges rarely reconsider their decisions, so the motion for reconsideration will probably be denied — it’s pretty rare for a judge to change his or her mind — but I wouldn’t be surprised if the 11th circuit reverses Cannon’s ruling.”