Jack Smith Is Set To Meet Secretly With Judge Cannon Over What Documents Trump Will See

Special Counsel Jack Smith will meet with Judge Aileen Cannon on Wednesday behind closed doors for a high-stakes colloquy that could determine whether the Mar-a-Lago case, widely seen as the one in which prosecutors stand on the firmest ground, bleeds into a possible second term for President Trump.The tete-a-tete between the district court judge, who has often proven to be a thorn in the government’s side, and Mr. Smith, who has charged Mr. Trump with 44 crimes across two criminal cases, will be ex parte. That means that neither Mr. Trump nor his attorneys will be present, and there will be no transcript of what is said. As Lin-Manuel Miranda wrote in “Hamilton,” no one will “know what got discussed/ Click boom! Then it happened/ But no one else was in the room where it happened.” The general topic, though, will be the access afforded to the 45th president to sensitive documents. Mr. Trump’s team wants “attorneys’-eyes-only access to these filings” so that they can challenge Mr. Smith’s “assertions in adversarial proceedings.” Those records, in any event, were found at Mar-a-Lago by agents from the FBI, when, pursuant to a warrant, they searched the Palm Beach manse. That trove resulted in the handing up of 40 charges against Mr. Trump for illegal retention of documents, including those classified as “top secret” and others described as vital to America’s national security.The indictment mentions one document that describes the “nuclear capabilities of a foreign country” and another that adumbrated the “nuclear weaponry of the United States.” Six top secret documents were marked “TK,” meaning Talent Keyhole, which signifies material related to America’s spy satellites. Mr. Trump has been charged with dozens of crimes under the Espionage Act. A clue to how sensitive these materials are can be found in Judge Cannon’s note, in the paperless order scheduling the hearing, that it will occur not at her Fort Pierce courtroom but at “a facility suitable for the discussion of classified information.” Mr. Trump has pushed for permission to review materials at Mar-a-Lago, while Mr. Smith wants to repair to a location at the District of Columbia.At issue at the ex parte hearing and two follow-up sessions, scheduled for February 12 and 13, is Section Four of the Classified Information Procedure Act. That provision authorizes 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.”CIPA also allows the government, upon a judicial order, “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.” This is a departure from prosecutors’ customary obligations, under the Brady rule, to proactively turn over to the defendant any material evidence that could prove exculpatory. The Department of Justice, in a criminal resource manual, writes that the court’s denial of a Section Four request — that is the kind that Mr. Smith is seeking — “is subject to interlocutory appeal.” That means it can be appealed immediately, in advance of a verdict. Mr. Smith would be familiar with this status, as an interlocutory appeal — on the issue of presidential immunity — is now holding up his January 6 case against Mr. Trump.An appeal from Mr. Smith in the coming days would indicate that he lost the closed-door argument, but such a move would present risks to the government’s push to begin a trial on May 9, the date scheduled by Judge Cannon. While that date is still on the books, she has expressed skepticism that it will hold, remarking in November that she “has a hard time seeing how realistically this [current schedule] would work.”Mr. Smith, then, would be required to weigh the value of keeping the documents in question under seal against the time that would be consumed by an appeal to the 11th United States Circuit. A tribunal in an earlier iteration of this case resoundingly rejected Judge Cannon’s imposition of a special master — or outside authority — to supervise the government’s investigation into the Mar-a-Lago documents. That, though, could prove to be an error of judgment by the circuit riders.An interlocutory appeal, should the special counsel decide to launch it, could wend its way through three stages. First, it would be heard by a panel of three judges of the 11th Circuit. Next, whoever loses can appeal for an en banc hearing of that circuit. Finally, the Supreme Court, which already has a full “Trump docket,” could offer a final scene of arbitration.

Jack Smith Is Set To Meet Secretly With Judge Cannon Over What Documents Trump Will See

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