Judge Cannon Reverses Herself and Capitulates to Jack Smith on Witness Secrecy, Suggesting Anxiety About Appeal

Judge Cannon’s capitulation to Special Counsel Jack Smith’s request that she reconsider sealing the name of witnesses could telegraph that his increasingly explicit invocations of appeal are beginning to yield results, albeit ones delivered with a heaping of now habitual hostility. For now, Mr. Smith’s victory amounts to the redactions of the names — they will be referred to by non-identifying characteristics — of two dozen possible witnesses from the public docket. He warned that disclosing names could prompt threats to their safety. The special counsel likely hopes that this modest win can be duplicated with respect to jury instructions and the trial date. The judge’s original ruling, guided, she notes, “by the strong presumption of public access,”was that the names of witnesses would be disclosed. Mr. Smith took the unusual step of moving for reconsideration, arguing that Judge Cannon’s conclusion was marred by “clear error” and would result in “manifest injustice.”Mr. Smith’s motion was marbled with references to the United States Court of Appeals for the 11th Circuit, a signal that if Judge Cannon declined to reconsider, an appeal to the tribunal that oversees her would be forthcoming, a prospect that would cause anxiety in most jurists. A panel of riders from that circuit overruled her with respect to the appointment of a special master at an earlier stage of the case. While Judge Cannon sided with Mr. Smith on the question of whether the witness names would be disclosed, her tone was barbed. With respect to one issue, she writes that he “did not meaningfully engage with any of the legal standards, and did not offer any additional factual support.”At times, Judge Cannon’s order granting Mr. Smith’s request read like a scolding. She reams him out, declaring that he “failed to offer a governing legal framework or any factual support for the relief sought” and instead proffered “conclusory and unsubstantiated assertions about witness safety, the integrity of the proceedings, and privacy interests.” This comes after she last week denounced another one of his requests as “unprecedented and unjust.”Nevertheless Judge Cannon “elects, upon a full review of those newly raised arguments, to reconsider its prior Order.” She explains that although she was correct to deny the special counsel’s request initially, his motion for reconsideration remedied those defects. By overruling herself, the judge could be foreclosing the possibility that the 11th Circuit would do it for her. Judge Cannon’s “bottom line” is that the list of witnesses in the case — many of whom are likely from Mr. Trump’s circles — is “not subject to a public right of access, whether constitutional or common law in nature.” This means that the 45th president’s invocations of the Constitution do not avail at this juncture because discovery material “is not subject to the First Amendment or common-law rights of access.”The judge allows that, ”right-of-access case law as related to criminal pretrial motions remains developing” and notes the he “still-developing and somewhat muddled questions raised in this criminal case,” a characterization of precedent that rebuts — possibly in the first instance to the 11th Circuit — Mr. Smith’s claim that she is guilty of “clear error.” While Judge Cannon refers to Mr. Smith’s request for secrecy as “sweeping,” she does, as a prelude to granting his request, order him to “file under seal an index containing the name of each potential government witness” and a corresponding pseudonym, to be used in connection to materials his office produces to Mr. Trump during the ongoing process of discovery. The 45th president is under gag orders at Manhattan and the District of Columbia, but not Florida. One reason for that could be because while Mr. Trump has publicly excoriated Judge Juan Merchan of Manhattan and Judge Tanya Chutkan of the District of Columbia, he appears to be enamored of Judge Cannon, whom he named to the bench. Last week on Truth Social he called her “a highly respected Judge.”

Judge Cannon Reverses Herself and Capitulates to Jack Smith on Witness Secrecy, Suggesting Anxiety About Appeal

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