Aileen Cannon has frothed up the usual suspects with her latest order, in which she suggests that Jack Smith is being inconsistent about his approach to grand jury secrecy.
In closing, the Court deems it necessary to express concern over the Special Counsel’s treatment of certain sealed materials in this case. In two separate filings related to sealing, the Special Counsel stated, without qualification, that he had no objection to full unsealing of previously sealed docket entries related to allegations of prosecutorial misconduct [ECF Nos. 423, 464]. In light of that repeated representation, and in the absence of any defense objection, the Court unsealed those materials consistent with the general presumption in favor of public access [ECF No. 472 (unsealing ECF Nos. 101, 115–116, 118)]. Subsequently, in the course of adjudicating continuing redaction disputesleading to this Order, the Court inquired about those nowunsealed filings, which contain material as to which the Special Counsel has voiced (and continues to voice) objections to unsealing [ECF No. 267–268, 294, 350, 369, 511 (opposing public disclosure of potential witness names, ancillary names, and grand jury matters); see ECF Nos. 506, 533, 542]. 4 In response to those inquiries, counsel explained that the Special Counsel took the position on unsealing in order to publicly and transparently refute defense allegations of prosecutorial misconduct raised in pretrial motions [ECF No. 542 p. 67]. 5 Fair enough. But nowhere in that explanation is there any basis to conclude that the Special Counsel could not have defended the integrity of his Office while simultaneously preserving the witness-safety and Rule6(e) concerns he has repeatedly told the Court, and maintains to this day, are of serious consequence, and which the Court has endeavored with diligence to accommodate in its multiple Orders on sealing/redaction [e.g., ECF Nos. 295, 361, 438, 440, 474]. The Court is disappointed in these developments. The sealing and redaction rules should be applied consistently and fairly upon a sufficient factual and legal showing. And parties should not make requests that undermine any prior representations or positions except upon full disclosure to the Court and appropriate briefing.
3 In addition, subject to further unsealing as becomes necessary, this Order marks the resolution of the limited disclosure issues transferred to this Court by the U.S. District Court for the District of Columbia [ECF No. 512 (sealed)].
4 The Court also notes that the Superseding Indictment contains numerous quotes from grand jury testimony, the balance of which the Special Counsel continues to maintain require sealing under Rule 6(e) [ECF No. 85]. [links added]
Ultimately, this is a complaint from Aileen Cannon that she made Stan Woodward look bad.
This kerfuffle stems from two things.
First, Jack Smith overproduced discovery to Donald Trump and his co-defendants compared to normal defendants, providing most grand jury transcripts from the start, rather than in conjunction with and timed to select witnesses testifying. Under Jencks, he would normally not be required to turn that over until when witnesses testified, but instead, he provided a guy who has serially ginned up threats against witnesses means with which to do so from the start.
Second, Cannon has twice intervened out of course, reading reporting based on leaks and deciding it is her job to expose the underlying dispute.
In this case, it arises from an order she issued days after the superseding indictment, requiring both sides to submit details about a claim reported in the press but not yet raised by Stan Woodard that Jay Bratt had threatened Stan Woodward in an attempt to force Walt Nauta to flip on Donald Trump.
THIS MATTER comes before the Court upon news reports of allegations of potential misconduct related to the investigation of this case and related reports of a review by the United States District Court for the District of Columbia. The Court refers herein to reported allegations raised by Stanley E. Woodward, counsel for Waltine Nauta, against Jay I. Bratt, Counselor to the Special Prosecutor, concerning statements made by Mr. Bratt to Mr. Woodward regarding a judicial application submitted by Mr. Woodward. In service of the Court’s independent obligation to protect the integrity of this judicial proceeding, and to promote transparency in the Court’s oversight of this case, it is ORDERED AND ADJUDGED as follows:
1. On or before August 11, 2023, Counsel for Waltine Nauta shall file under seal with the Court a complete and current account of the accuracy, substance, and status of the reported allegations, and shall attach to the submission any pertinent written materials on the subject, including any materials submitted to the United States District Court for the District of Columbia.
2. Similarly, on or before the same date of August 11, 2023, the Special Counsel shall file under seal with the Court a complete and current report on the status of the referenced allegations, attaching any written materials on the subject in the possession or custody of the Special Counsel or the United States Department of Justice. [my emphasis]
In response to Judge Cannon’s sua sponte intervention, Smith submitted several filings — including almost 200 pages showing that after Trump got warned he was going to be charged, he ginned up a bunch of misconduct allegations, including the one that got shared with the press. Those filings show Trump abusing the legal process, not Smith abusing his prosecutorial position.
These are grand jury proceedings about the investigation, not grand jury testimony of witnesses (though it describes the circumstances of certain witness testimony, including Margo Martin and Kash Patel). This filings show that the public claims Trump associates were making didn’t match the substance of a second dispute that happened before James Boasberg last summer.
The other filings were similar attempts by Trump to make allegations of misconduct (in conjunction with motions to dismiss) that he didn’t have to back publicly, but also to expose grand jury testimony. Smith’s opposition to releasing those materials stemmed from a justified intent not to allow Trump to abuse Smith’s expansive discovery to engage in witness tampering.
Of course, the problem would never have happened if Aileen Cannon hadn’t done something inappropriate in the first place, deciding to chase Fox News allegations in a court of law.
Cannon’s complaint amounts to a complaint that her initial intervention did not provide Trump an opportunity to threaten witnesses.
This is not the first time a little transparency revealed what a hack Cannon is being. In closely related developments last year, for example, the government made it clear she already had notice of Stan Woodward’s potential conflicts when she delayed proceedings for a month pretending it was new.
Ultimately, by the time all this gets unsealed, we’ll be able to reconstruct how Cannon’s serial attempts to put a thumb on the scale actually had the effect of making Woodward (and Trump’s lawyers) look dishonest. It’ll take time to do that, of course, which is likely why Cannon is wailing now, before we can reconstruct it.