Legal experts sounded the alarm after the judge overseeing Donald Trump’s classified documents case rejected special counsel Jack Smith’s bid to keep government witnesses secret.
Smith’s team opposed making information public that could reveal the identity or any personal identifying information of any potential witnesses in the case or any transcripts or other documents they may have provided, citing concerns about witness intimidation.
Trump-appointed U.S. District Judge Aileen Cannon ruled in Trump’s favor on the matter, writing: “Following an independent review of the Motion and the full record, the Court determines, with limited exceptions as detailed below, that the Special Counsel has not set forth a sufficient factual or legal basis warranting deviation from the strong presumption in favor of public access to the records at issue.”
Cannon questioned Smith’s concern for witnesses, writing that “the Special Counsel’s sparse and undifferentiated Response fails to provide the Court with the necessary factual basis to justify sealing.”
The Press Coalition, which is comprised of major media companies, also asked the court to unseal Trump’s redacted motion in unclassified form, citing public interest.
Jeremy Foley, a Berkeley College law professor who specializes in judicial ethics, told Newsweek it is "unusual for a judge to make classified documents public."
"Before doing so, Judge Cannon was required to weigh the factors favoring disclosure: potential aid to the defense and the public interest argument asserted by the media groups against those identified by the government: release of the documents could harm national security, impair an ongoing investigation, or compromise potential witnesses in the case," he said.
"If the government is concerned that the judge's order will cause harm, it can seek emergency relief from the 11th Circuit, which could stay the order pending review. We should know very soon if that happens," Foley added.
The order raised concerns among legal experts who have long worried that Cannon may be tilting the case in favor of Trump.
“Judge Aileen Cannon continues to make rulings that are disturbing,” former U.S. Attorney Joyce Vance wrote on Substack. “Perhaps we’d view any one of them, on their own, as a judicial aberration. But the pattern of ruling upon ruling that is out of the legal mainstream and results in delay well past the point where this case should have been ready for trial is something that shouldn’t be ignored. Judges should not put their fingers on the scales of justice either for or against a defendant or any other party. Here, it’s impossible to avoid the conclusion that the scales are being tipped.”
Smith’s “best option” may be to ask Cannon to reconsider, but the judge’s “dismissive tone towards the government suggests that there is little they can do to persuade her,” Vance wrote.
A big test will come next week when Cannon holds a hearing under Section 4 of the Classified Information Procedures Act (CIPA), where she will make rulings on what classified material in discovery can be used at trial. Trump is expected to seek additional delays in the case, asking Cannon to postpone the deadline for some pre-trial motions and revisiting his presidential immunity and Presidential Records Act claims that “border on being frivolous at this point, and using them to further delay this case would be a travesty,” Vance wrote.
“The time for Smith to decide whether to actively seek Cannon’s recusal, or at least hint to the Circuit that it’s merited, will be after the Section 4 hearing rulings are issued,” Vance noted. “Forced recusals are rare. But at this late date, even if the 11th Circuit were to move quickly, as it has in the past, and force Cannon to step aside, it would take a new judge some time to get up to speed. There are no quick fixes for the damage Judge Cannon has done,” she added.
Longtime Harvard Law Prof. Laurence Tribe said he hopes Tuesday’s order “will trigger a motion to remove her.”
“The 11th Circuit might well agree this was the last straw. Compromising national security is a bridge too far,” he tweeted.
“It is impossible to overstate how awful and unethical is Aileen Cannon,” added Norman Ornstein, emeritus scholar at the American Enterprise Institute. “Clearly has no business being a judge at any level.”
