emptywheel Makes CIPA History

Yesterday, Judge Aileen Cannon issued a surly order, acceding to Jack Smith’s request to protect witnesses. In reversing herself, Cannon scolded Smith for not making a more fulsome case to seal information.

Only now, after failing to meaningfully “raise argument[s] or present evidence that could have been raised” in these responses, Wilchombe, 555 F.3d at 957, the Special Counsel moves for reconsideration and argues, in no uncertain terms, that the Court committed “clear error” by applying an unobjected-to legal standard [ECF Nos. 267, 282]

Ultimately, Cannon argued the 11th Circuit precedent on this — but not on other — types of pretrial motions is undecided.

Having done so, the bottom line is this. The Eleventh Circuit has not specifically addressed the instant question: whether, in a criminal proceeding, the First Amendment qualified right of access attaches to discovery materials referenced or attached in support of a publicly filed Rule 12(b) motion to compel discovery under Rule 16. Nevertheless, the most faithful application of Supreme Court and available Eleventh Circuit authority is that Defendants’ MTC in this case is not subject to a public right of access, whether constitutional or common law in nature, because it is a still, ultimately, a discovery motion as distinct from a substantive pre-trial motion requiring judicial resolution on the merits.

Remember: One reason Trump has these materials to attempt to publicly release is because Smith was more generous in discovery than the rules require. Cannon did not permit Smith to seal information that would otherwise be Jencks, aside from information identifying witnesses.

The Court reaches a different conclusion as to the Special Counsel’s broad-based request to seal the substance of all substantive Jencks statements referenced in and/or attached to the MTC [ECF No. 278 p. 2 (arguing for wholesale sealing of potential witnesses’ statements to avoid “influenc[ing] the testimony of other witnesses or the jury pool”)]. By granting this sweeping and undifferentiated request—which the Special Counsel also raises in seal requests associated with Defendants’ substantive pretrial motions [See ECF No. 348 pp. 6–7]—the Court would be authorizing the categorical sealing of large portions of the record attached in support of critical
pretrial defense motions.

Meanwhile, in SDNY, I won (or rather, Judge Jesse Furman used my intervention (and that of Inner City Press) as an excuse to grant disclosure of something even more rare: Redacted transcripts from the CIPA 6 conference in the Josh Schulte case.

[T]he Court concludes that CIPA overrides any common law right of public access to the transcripts of a closed CIPA Section 6 hearing, at least where, as here, the court determines that the classified information may not be disclosed or used at trial. But the Court concludes that the public has a qualified right of public access to such transcripts under the First Amendment. It follows that the transcripts at issue here, redacted to protect national security or to preserve other higher values, must be unsealed.

As Furman noted, he had already disclosed some of this in a conference on jury instructions; he had distinguished those who disseminated already-released classified information if they knew it was classified (and therefore, by re-disseminating it, would confirm that it was classified) from those who did not have means to know.

I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to [] extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

So all of which is to say I think I have come around to the view that merely sharing something that is already in the public domain probably can’t support a conviction under this provision except that if the sharing of it provides something new, namely, confirmation that it is reliable, confirmation that it is CIA information, confirmation that it is legitimate bona fide national defense information, then that confirmation is, itself, or can, itself, be NDI. I otherwise
think that we are just in a terrain where, literally, there are hundreds of thousands of people unwittingly violating the Espionage Act by sharing the New York Times report about the WikiLeaks leak.

Furman has given the government an opportunity to further redact the transcripts, but ordered them otherwise released on May 3 — meaning they’d be available before the follow-up hearing in the Assange extradition case, on which — because they pertain to the First Amendment — they may have bearing.

I’m not entirely sure this move is as unprecedented as Furman makes out. Some of the CIPA materials in the Scooter Libby case were released.

But particularly because this may affect the Assange extradition and particularly because the CIPA hearings in the Trump case are sure to be contentious, I would not be surprised if the government appeals this decision.

Thanks, again, to National Security Counselors’ Kel McClanahan to agreeing to argue this for me. You can support them here or here.

Update: Here’s my post explaining the High Court order inviting assurances about Assange’s First Amendment protections. DOJ has 6 more days to issue those assurances.

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59 replies
  1. BRUCE F COLE says:

    Bear shit has a quality
    That jurists can’t elide:
    Once it gets deposited
    There’s nothing left to hide.

    Even if you plunk a dome
    Atop the steaming pile,
    The smell still lingers everywhere
    And frustrates all denial.

    Well done, Marcy. You deserve some kind of a hybrid Doctorate of Letters.

    • Allagashed says:

      Don’t be picking on bears; they leave behind, by far, one of natures least noxious piles. Yes, it does have a ‘quality’; usually grainy, coarse, and fairly lumpy. Break one open and it resembles off-grid fruit cake, but smells better. Other than that, I thoroughly enjoyed your comment. I come here to learn, not comment on legal issues. Bear shit however, I am eminently qualified to discuss.

  2. phred says:

    Congratulations EW!

    So, I actually popped in looking for your thoughts on the latest from Cannon (thanks for that!). Previously you have suggested that if she did not seal the witness identities that that would be the final straw to send Smith to the appeals court.

    I’m wondering whether Cannon’s surliness was due to her understanding that she was caught between a rock and a hard place with this decision. I’m also wondering whether she has once again threaded the needle to head off an appeal (or whatever the correct term is) so she can remain on the case.

  3. earlofhuntingdon says:

    Had Judge Cannon done a little of her own homework, she would not have needed the SC to make more fulsome arguments about sealing information, and would have known the 11th Circuit precedents are less helpful than she would like, which leaves her to craft something, rather than cut and paste. She seems to like the power, but resents the work that comes with the job.

    • BRUCE F COLE says:

      I took it as her as using that dearth of home-circuit precedents as an excuse to put yet another drag on the case’s forward progress. IOW, not laziness so much as brazenness.

      • earlofhuntingdon says:

        She does seem skillful at adopting a persona that characterizes her conduct as inexperienced, perhaps a little overwhelmed, or even negligent, and avoids characterizing it as intentional. She knows that consequences for the former are always more lenient than for the latter.

        • Rwood0808 says:

          EOH,

          I’m seeing opinion pieces saying that Cannon saved herself by ruling in favor of Smith after he backed her into that corner, but I’m also seeing opinions saying that she didn’t save herself enough, and that by keeping the mere possibility of trumps lawyers’ introducing the PRA at trial alive she has in effect left the door open for Smith to appeal.

          I have to think that her transgressions, while perhaps not crossing a needed line, are piling up. Assuming the 11th are as frustrated with her as Smith is, does he have enough to take the case to them?

          One commenter I saw, who claimed to be a former prosecutor, went so far as to say that the 11th were leaning forward in their seats and mentally screaming at Smith to get on with it.

          The group here seems to think that Smith doesn’t have enough and that it would be too bold for him to try. I feel he is that bold, so I wonder what his chances are when he does?

      • BRUCE F COLE says:

        To wit: she dove right in and “crafted” the pretext for her brazen Special Master ruling out of the vanishingly thin air of equitable jurisdiction hocus pocus prompted by the defense atty himself. The only reason she didn’t do something similar in this case is that she’s on vanishingly thin ice with the Circuit, and the resulting stalling tactic is as “good” a result as she could muster for the Defendants.

        The same goes for her jury-instructions shell-game, again, imo.

        • earlofhuntingdon says:

          The SC put Cannon on notice that she had to come up with rulings that followed the law, regarding uncontentious statutes and rules, or face an appeal to the 11th Cir., which might get her booted off the case. That’s never a good look for an ambitious lawyer who doesn’t want to be stuck in a one-judge courthouse in Ft. Pierce for the next thirty years.

          The responsibility for her predicament lies solely with Judge Cannon. She put herself in jeopardy through her delays, non-action, and off-the-wall legal arguments. She backed down less to “save her job,” as the press often mistakenly puts it (short of impeachment, it’s hers for life), but to avoid being forced to recuse herself on this case by the 11th Cir.

          So long as she eventually comes up with rulings that follow precedent, she’s likely to keep this case. But she has to take the PRA off the table, and give up trying to raise it anew after the trial starts. I don’t see how Jack Smith can go to trial with that hanging over his case.

        • CPtight617 says:

          Seems to me SC Smith has no choice but to return and ask/demand Cannon give a firm yea or nay on the PRA. If she again tries to slice and dice it, then I would think mandamus is as warranted as he’s gonna get. Sure, she’ll be pissed, but she’s already got a beehive in her bonnet over SC and thinks this entire prosecution is specious. Pettily, she may think that she can redeem her judicial reputation from those 11th Cir. scoldings by now “proving” SC never had a case to begin with by killing it via PRA or some other shenanigans she’s got up her sleeve.

          I really would love to know who in MAGAland is coaching her — Tom Fitton? Judge Jeannine? Boris Epshteyn?

        • SteveBev says:

          This is the second time In roughly a week that Cannon has sought to cover her own missteps by casting aspersions on the adequacy and/or good faith of the advocacy and motion practice of the SC.

          While she might get away with it in these instances, should it become a habit I would not have thought it would be one which will serve her well

        • PJB2point0 says:

          I heard someone (maybe George Conway) suggest that the 11th Circuit has a sort of informal “3 strikes” standard whereby if the District Court is wrong 3 times in the same direction, they will reverse and remand to the chief judge of the district to reassign the case. I wonder if anyone who practices in that circuit (I think it is the federal courts of Alabama, Georgia, Florida) has any insight into whether that is the case.

    • eyesoars says:

      She’s apparently having trouble finding others to do her homework. According to recent news articles, almost all of her clerks have been with her for less than a year, and it takes awhile to get security clearances. Eighteen months is the norm in my experience, but I’m sure these are being fast-tracked.

      Congratulations, Dr. Wheeler!

  4. Fancy Chicken says:

    Congratulations Dr. Wheeler!

    Seems like your issue with getting those redacted transcripts has been a long time coming. So glad to see your work with the help of National Security Counselors has come to fruit. Now to see what gets released on the 3rd.

  5. Savage Librarian says:

    Whatnot

    The tin pot dictator favored a stone cold tea party. Even though it was short on Havarti, the crew knew how to remain quite farty. Then things got more than a little gnarly, awaiting Rasputin’s arrival (although he was tardy.) Wiles and gambits were the order of the day. Until they finally got in the way. Who was left banging the pot? The dish and the spoon and a little whatnot.

    7/14/20, rev. 8/9/22

  6. earlofhuntingdon says:

    I’m a little flabbergasted that the insecure and seemingly paranoid Trump, who never employs anyone without demanding an NDA from them, argued for the public disclosure of Mar-a-Lago’s floorplan and a USSS security memorandum about it (p. 5). The SC argued to keep it confidential and Cannon agreed.

    • BRUCE F COLE says:

      The tactical implications are way beyond me, but it has the look of being a reflexive move on Smith’s part. Head scratcher for sure.

      • earlofhuntingdon says:

        How is it “reflexive” for Jack Smith to argue not to disclose the MAL floorplan and/or USSS security memo? It’s appropriate, as is Cannon’s agreeing with him. Either would have been mad to do anything else. FFS, it’s a former president’s primary residence. What’s absurd is that Trump’s lawyers argued to release that data.

        • Rayne says:

          What a convenient way to inform the party/ies who are interested in any classified materials which haven’t been accounted for, or a location for dropping payments/messages — just publish MaL’s current floor plans as court records.

        • earlofhuntingdon says:

          Trump is famous for his marketing skills, I hear.

          Lots of things could be delivered to Donny at MAL, if you knew the floorplan. The weight of $1.0 million in $100 bills of random ages and serial numbers, for example, is about 10kg. A briefcase or a shoulder bag would deliver a little of the aid Donny needs most to the place he needs it most.

        • Rayne says:

          If one could identify the hidey-holes the FBI didn’t search when they executed their warrant, it’d be a two-fer — pick-up and delivery.

        • BRUCE F COLE says:

          Apologies, eoh. This was another badly conceived snark on my part, and once again, inexcusably, without a snark tag.

          I was making a lame joke about how your parent comment could be read two ways: the obvious way you meant, and the “stupid” way being that Cannon’s agreement with Smith indicated a fault on Smith’s part. Your comment didn’t deserve any snark, even with a tag attached.

          It was the kind of comment that bmaz would have dropped one of his “You are making the site dumber” comments on, which would have been appropriate.

    • dopefish says:

      With my cynical hat on, I can imagine Team Trump asking for this because they thought SCO would likely oppose it and the Court would be unlikely to grant it. Just one more little thing to make it seem a “complicated” case, maybe use up some time in a hearing, maybe cause some delay, or maybe just make it easier for Judge Cannon to feel like she was making a “balanced” ruling when she denies some other substantive thing the SCO asks for, since she also denied defendants things like this.

      I guess that would be improper under Rule 11(b) but Trump’s lawyers don’t seem like they would care. The only real risk in asking was that Cannon might actually make the docs public.

  7. Tech Support says:

    Congrats Marcy! I think it’s easy these days to forget the true value of a free press in a functioning democracy, but it’s never more apparent than in those moments when the work of journalists and the work of the courts intersect. Thank you!

  8. Fancy Chicken says:

    Well this is interesting in light of today’s post-

    But what does Biden mean when he says he’s considering dropping Assange’s prosecution ?

    Is this just some language to keep peace with Australia or does he really mean it? That’s the question.

    [FYI – you published this under your RL name and not your username. I have corrected this once; please clear your browser’s cache and check your autofill. /~Rayne]

    • Fancy Chicken says:

      Oh Geez, so sorry for the inconvenience. Thanks for your correction Rayne, much appreciated.

  9. Molly Pitcher says:

    Well I am confident that your hard work is used all the time all over the place, we just don’t get to hear about it out loud. Congratulations.

  10. Sussex Trafalgar says:

    Well done, EW!

    As I’ve said more than once before, you are second to none!

    Thanks for your 24/7 nonstop work!

  11. NYsportsfanSufferer says:

    Marcy is having a hell of a year and it’s only April! Congrats!

    It’s testament to all of your hard work. We all appreciate all that you do.

  12. LargeMoose says:

    Congratulations Marcy! You should be awarded the Medal of Freedom, since you work so hard to protect it.

  13. David F. Snyder says:

    Cannon’s ruling reminds me of an old joke: “Every legal argument given by the SC was positively poison—and what small portions they gave me of it”.

    Or perhaps a more apt citation: “The lady doth protest too much, methinks.”

    • Fancy Chicken says:

      Close. It was actually a Guardian article I posted but not only did I accidentally put my RL name in my handle that Rayne had to correct, it looks like my copy pasta was a fail too.

      That’s what I get for trying to post when a migraine is coming on hard.

      So thanks for providing your link.

  14. noneoftheabove says:

    Seems pretty obvious to me Judge Cannon is navigating every shoal here to emerge as Trump’s Attorney General in a second term. If Trump is convicted in New York, goes to prison, is meanwhile elected pres, can he still name his cabinet from behind bars? Now, that would be a first.

  15. ShallMustMay08 says:

    Congratulations and thank you both!!!

    Catching up but I do appreciate a decision with good writing and clearly stated reasoning. When I saw the hypotheticals I almost felt nostalgia for Justice Breyer. I remember stumbling into the Wikileaks website in the spring of 2009 and seeing a page that was clearly marked as a cable and concerning government business (about some West African politics) and thinking then wtf is this? I closed the page and shut down my laptop and the following year later we all came to know. I respect there are national security implications here but I do believe the default choice is to conceal it all unless there is a reason to embarrass and disparage another individual or entity. Likely the same mindset as always but nonetheless the hypos offered up here are dark.

    Appreciate the work. Thank you.

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