Aileen Cannon’s Not-Abnormal Orders
Judge Aileen Cannon just issued three orders in response to the motions I described here as well as a standard Classified Information Procedures Act (CIPA) request. They’ve got people in a panic, so I want to break them down by request and response.
Request 1: Motion to Implement Special Conditions of Release
Before Trump’s arraignment, DOJ asked for no special pre-trial release conditions, aside from Trump not breaking the law anymore. But Magistrate Judge Jonathan Goodman imposed one of his own: that Trump and Walt Nauta not communicate about the facts of the case with witnesses except through lawyers.
Goodman ordered the government to provide defendants with a list of witnesses this covered.
DOJ went beyond this — not only giving Trump and Nauta that list (of 84 witnesses), but also asking to file a sealed version on the docket, without explaining why it was doing so, and also asking Trump and Nauta to sign acknowledgment of the list.
Trump and Nauta objected to that part of it.
Defense counsel takes no position on the government’s motion to seal the list of witnesses, but the defense reserves the right to object to the special condition and the manner in which it was implemented by the government by providing a list of 84 witnesses in purported compliance with the court’s order.
I suggested, among other things, that Trump might oppose this because it could stymie his efforts to fundraise off of being an accused felon.
After that, a media coalition opposed the government motion, asking that any list be filed unsealed.
Cannon’s response, denying the motion without prejudice, basically requires the government to explain why it made the request in the first place.
PAPERLESS ORDER denying without prejudice 33 Government’s Motion to Implement Special Condition of Release. The Government seeks an order implementing a special condition of bond related to Defendants’ communication with eighty-four listed witnesses about the facts of the case, except through counsel [ECF No. 17 p. 4]. The Government conditions its request on the filing of the non-exhaustive list under seal. Defendants take no position on the Government’s seal request but reserve the right to object to the special condition and the manner by which the Government intends to implement it. In the meantime, numerous news organizations have moved to intervene to oppose the Government’s Motion to File Witness List Under Seal, citing the First Amendment and related legal principles 35 . Upon review of the foregoing materials, the Government’s Motion 33 is denied without prejudice, and the Motion to Intervene 35 and accompanying Motions to Appear Pro Hac Vice 36 37 38 39 are denied as moot. The Government’s Motion does not explain why filing the list with the Court is necessary; it does not offer a particularized basis to justify sealing the list from public view; it does not explain why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory; and it does not specify the duration of any proposed seal. See S.D. Fla. L.R. 5.4(a), (c)(1). The Clerk is directed to return the Pro Hac Vice fees to the filing attorneys. Signed by Judge Aileen M. Cannon on 6/26/2023. (sj00) (Entered: 06/26/2023) [my emphasis]
As written, Cannon, is not reconsidering the limits on contact with witnesses. Rather, she’s asking why the government feels the need to file the list and if so why it needs to be sealed.
Ultimately, Cannon is just shifting the presumptive power before she responds to the media outlets’ request, properly requiring the government to justify sealing something before doing so. As Kyle Cheney laid out in a worthwhile review of her history, Cannon has in the past been receptive to media requests.
Also of note in the proceedings: Cannon partially granted a motion by the Miami Herald to unseal key sealed documents in the case, agreeing to do so with redactions sought by the government.
So DOJ will refile its request with more justification and we’ll learn how Cannon really feels about this pre-release condition.
Request 2: Motion for a Continuance
On the same day, Friday, DOJ also asked for a multi-part motion for a continuance from the August trial date to a December one.
It laid out the following logic:
- The matter is not complex, meaning Trump doesn’t need a year to review discovery
- The matter does involve classified information, which will require using the Classified Information Procedures Act (CIPA), which takes some time
- Also, Trump will need more time to review discovery than the current schedule allows
DOJ provided some legal requests, as well as a proposed timeline.
In response to this request, Cannon asked the defendants what they think:
On or before July 6, 2023, Defendants shall respond to the Government’s Motion for Continuance 34, either individually or in a combined filing.
This is normal.
Request 3: Motion on CIPA
The motion for CIPA, which is mostly boilerplate, reviews how the process works, including steps that are mandated by law. DOJ included a standard order requesting the following:
- Schedule a CIPA 2 conference to talk about the classified matters at issue
- Appoint a Court Information Security Officer
In her order, Cannon cited the defendants’ lack off opposition.
The government has conferred with counsel for Defendant Trump and Defendant Nauta about this motion. They have stated that they have no objection to this motion. Counsel for Defendant Nauta, Stanley Woodward, has not yet been admitted pro hac vice or entered an appearance, but the government is providing him a courtesy copy of this pleading.
Then she granted both of these issues, setting the CIPA 2 conference for July 14 and appointing a CISO, both normal steps in this process. She did say,
The Court expresses no view on the other matters addressed in the Government’s Motion.
But those matters are dictated by law.
At this point, neither Cannon nor the defendants’ lawyers know how this works. The conference is the first step in introducing them all to it.
Cannon did say that “Defendants are not required to be present” which is also standard, and would be better here to discuss how this is going to work.
There is nothing to panic about here. Mostly, it seems, Cannon is trying to be careful.
I promise you, I’ll let you know if and when it is time to panic about Judge Cannon’s orders. Thus far, these are reasonable orders.
The media also asked for a mugshot……
[Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username “Max” is far too short and common it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. WARNING: Your IP address is in the same range as other previously blacklisted addresses. Moderation may take longer for this reason. Thanks. /~Rayne]
One question popped to my mind the other day. 84 witnesses seems like a lot, but didn’t the DoJ indicate an estimated 21-day trial? 84 witnesses in 21 days doesn’t seem feasible to me, though IANAL. I figure many are potential witnesses meaning they may not testify. But I was wondering if those with experience could explain any impact on the length of the trial, if any, or is this a usual timeframe for what seems relatively simple matter but with 84 potential witnesses.
Lol, you disclose any name you could potentially call. Chill out.
“There is nothing to panic about here. Mostly, it seems, Cannon is trying to be careful.”
This is precisely *why* CIPA was created – to help judges and the opposing lawyers do their jobs, while protecting national security interests — especially interests that are not at issue in the case before the court.
I wonder . . . is there any kind of “welcome to the world of national security” seminars for new federal judges, perhaps led by a panel of former FISA judges, to acquaint them with CIPA and national security concerns prior to having to actually implement CIPA in an actual case? If not, that strikes me as something the Judicial branch might want to look into.
Unless these cases hit the federal judiciary with some degree of regularity, I wouldn’t include this type of training in “new hire orientation” (aka seminars for the newly appointed). The risk is that even if your students are highly attentive that knowledge is likely to atrophy before it’s put to use.
It does beg the question of whether there are any standardized resources/references available to judges when infrequent but clearly defined procedural one-offs come up though.
The things you find when you poke around government websites. Meet the Federal Judicial Center, which handles orientation for new judges as well as continuing education. In describing their orientation practices, they include this:
Poking further, I went to the publications library and noted that among their list of manuals are three related to national security issues:
1) National Security Case Management: An Annotated Guide (2011)
2) Keeping Government Secrets: A Pocket Guide on the State-Secrets Privilege, the Classified Information Procedures Act, and Classified Information Security Officers, Second Edition (Jan 2013)
3) National Security Case Studies: Special Case-Management Challenges, Seventh Edition [August 2022)
All three are available for download by following the links provided on this page.
I suspect that if she didn’t have them before Cannon has pulled all three of these as soon as this case was assigned to her.
Cool finds! Now I’m wishing for an extra day in the week so I could read through these by autumn.
One of the amazing things the US govt does that I think is vastly ignored and underappreciated by the general public is the amount of educational material that is generated and then is just handed out, for free, to basically the whole world.
I once read a Malcom Gladwell article about bias in job interviews and he referenced a technique called structured interviewing. It sounded interesting and I wanted to apply the concepts in my own department. I scratched around for a few days before I found a free downloadable guide from the Office of Personnel Mgmt. Ended up building my entire process based on that one reference.
Definitely reasonable.
I’m a bit unclear on why the entire list of 84 witnesses should be sealed, as surely some of them are already inferred if not known. On the other hand, I imagine that first motion being analogous to an opening bid at bridge where you want to probe the strength of your partner’s hand, or letting your partner (and opponents) know you have a strong hand.
Pure speculation here . . .
I would guess that several of these witnesses were the authors of various classified documents or produced information that found its way into these documents, and whose connection with US intelligence services is under cover. They could testify to the sensitivity of the information, and the danger that revealing this to others could cause — but would want to do so only under the condition that their identity remain closely held.
Such people would testify in a closed CIPA hearing, and their testimony could result in a statement that could be provided to the jury that describes the sensitivity of a given document without having to reveal the details of the document itself. (Think of this as similar to jury instructions that the judge delivers at the end of the closing statements by the lawyers, except these would be delivered during the presentation of the case, not at the end.) In this case, the former is what is at issue, not the latter, and CIPA is designed to sort those two things out.
Harassment by the defendants and their supporters (and media supporting the defendants) is the most obvious reason.
“Protect witnesses from external intimidation / influence” would be my first guess in terms of justifying having the list under seal. Not just in terms of cutouts, of which the former guy has many, but the broader maga mob’s capacity to doxx people who probably lack the resources to protect themselves.
My one thought on that order: defense counsel already has the list but the court doesn’t, which conceivably creates space for, um, outreach to witnesses before there’s any mechanism to enforce the restrictions. (The govt wants all 84 witnesses to sign a formal acknowledgement of the bond condition.) But I don’t know if it would make a difference if the govt. found proof of potential witness tampering during the period before the list is filed.
Presumably they’ll now either make a case for “why partial sealing, [or] redaction, … are unavailable or unsatisfactory,” or they’ll change their minds about the entire list needing to be submitted under seal.
Thanks for keeping us up on her recent orders Marcy.
Do you happen to know who Judge Cannon is working with/asking for advice from as this criminal trial begins to move forward? Is this privileged info? Asking because I’d like to know how/why she comes-up with her “orders”. She has a team of her own, yes?
All federal judges have support staff and clerks. Insinuating there is some other nefarious “team” is dubious.
Geez, I’m not insinuating anything nefarious about her support staff and clerks Bmaz. That’s your interpretation of my question, not my intention to cast aspersions. However, given that no judge has ever presided over the criminal prosecution of a former POTUS (and her relatively nascent experience as a federal judge) I’m sure she will want some advice from her colleagues and mentors, the identity of whom I was interested in knowing (not names, but general idea) as her orders and rulings are published in this high profile case. It’s important to me to know that her previous decision to appoint a special master which delayed the FBI’s review of the MAL documents was her idea, and if not, whose idea was it. After all, the 11th circuit court of appeals rebuked her, as if she conjured-up that move de novo. And Marcy’s post is about her Not-Abnormal-Orders, so far.
Yeah, so you are asking about bullshit. If I knew the answer (I don’t) I would not give it to you. It is a spurious question.
Hah; spurious question you call BS.
Those of us still interested could use some help climbing this steep learning curve. I’m honored to ask it on EW.
You are asking a question that nobody here knows the answer to. So, be honored to not have it answered.
This prosecution is not as abnormal as the press and Trump endlessly scream that it is. Yes, Trump is a former president, thankfully, but he’s now a private citizen. Courts occasionally try defendants with lots of money and power. Trump just has a more extensive security detail than a mega-corporation, billionaire, or mob boss. Those guys are generally smart enough to plead out, with or without admitting guilt. Other considerations are political, not legal.
The law is fairly straightforward, there are adequate precedents, and the prosecution seems to have amassed considerable evidence, important bits of it from TFG’s own mouth. Absent a plea, the trial process will take a year or more. Let it run. That’s what the courts are for.
Exactly. It is a process.
The Federal Judicial Center offers orientation and continuing legal education for federal judges, as well as a library of manuals for legal matters that involve specialized processes that judges can refer to. See my comment above for more.
One example is that Tim Kelly, the early Trump appointee who presided over the Proud Boys trial, would bounce questions off Jeb Boasberg, now the Chief Judge in DC.
Reggie Walton, when he was presiding over the Scooter Libby trial (not the President, but a proxy for the VP at least), would bounce questions off other judges in the judges lunch room.
TY!
It is a bit tiresome about everyone getting so hyperventilated about every little thing this judge does that is not firmly in the direction of “the bailiff may open fire on the defendant whenever ready.”
In those private interchanges where people ask me about this case (and I am no expert) I have had to prepare a comprehensible explanation of a basic legal principle that goes like this: Jack Smith and his team are experienced career DoJ prosecutors and not some collection of whiny ass scared little bitches like you are. So calm down.
For some reason nobody appreciates it. But feel free to use that if you want.
Ah. The MTG information delivery method.
“For some reason nobody appreciates it. But feel free to use that if you want.”
I suppose that would depend on whether the person in question is actually a whiny ass scared little bitch.
Um. Under which of those two conditions would the feedback be, in fact, appreciated?
Thank you for this, and as always, a chuckle or two.
“ I promise you, I’ll let you know if and when it is time to panic about Judge Cannon’s orders. Thus far, these are reasonable orders.”
~Marcy Wheeler
So far, she hasn’t screamed “I’M COMPROMISED” with every single ruling. We won’t know what she’s up to for certain until after sentencing.
CNN has gotten an audio recording of the July, 2021 conversation where Trump talks about a classified doc created by Gen. Milley re: a potential attack on Iran, in conversation with those working on Meadows’ memoir:
https://www.cnn.com/2023/06/26/politics/trump-classified-documents-audio/index.html
I assume that they’re among the 84 witnesses. Awful but unsurprising to hear them laughing about him showing it to them.
And the New York Times comes through once again:
Judge Denies Request to Seal Witness List in Trump Documents Case
… no mention of that pesky “without prejudice” modifier.
“… no mention of that pesky “without prejudice” modifier.”
Maybe someone could explain that to us non-lawyers.
It means they can file it again with more details and the answer might change.
Thank you
@Alan_OrbitalMechanic,
“It is a bit tiresome about everyone getting so hyperventilated about every little thing this judge does that is not firmly in the direction of “the bailiff may open fire on the defendant whenever ready.”
That made me laugh! True.
[Thanks for updating your username to meet the 8 letter minimum. /~Rayne]
From former CIA attorney, Brian Greer [whom Marcy suggested following]:
1] 6/11/23
https://web.archive.org/web/20230617110334/https://twitter.com/secretsandlaws/status/1667905909287157762
2:45 PM · Jun 11, 2023
2] Jun 19, 2023
https://web.archive.org/web/20230626125149/https://twitter.com/secretsandlaws/status/1670780195307913219
1:06 PM · Jun 19, 2023
[I guess these TIMES are Internet Archive’s TZ]
3] 6/27/23
https://web.archive.org/web/20230627144159/https://twitter.com/secretsandlaws/status/1673679638797721605
1:08 PM · Jun 27, 2023
And, Greer’s opinion about “CANNON’S NOT-ABNORMAL ORDERS”:
4] 6/26/23
https://web.archive.org/web/20230627145756/https://twitter.com/secretsandlaws/status/1673424373729099776
8:13 PM · Jun 26, 2023
Say, maybe federal election law is not the province of states, much less single county attorneys, after all.
A bit of good news, eh Bmaz?
Datnotdat
Yes, it is indeed.
I don’t see what the Moore decision has to do with your beef with Willis.
Good thing Raffensperger’s appearing in front of a D.C. grand jury tomorrow, then.
No, of course you don’t.
So helpful.
Lol, take a look in a mirror.
Would you like me to be more specific? Fine. I don’t understand how a Supreme Court decision which interprets sections of the Constitution that specifically assign responsibility for the administration of elections to the states has any relationship to your contention that Willis is out of her lane and should have left the GA election case to the feds. If you’d ever explained *why* you think Willis is out of her lane, rather than just asserting loudly that she is and not-so-gently insinuating that anyone who can’t follow your unstated logic is a drooling idiot, then maybe I wouldn’t need to ask for clarification.
Oh, already have done that. Ask whatever you want. Within reason.