by Chris Bray
I’ve argued many times before that we’ve hollowed out a bunch of institutions and destroyed political, cultural, and social norms without fully noticing how much we’ve done it, and I’m about to show you a slightly complicated and extremely startling example.
To give you a preview of what’s coming, Tristan Snell is a not-undistinguished lawyer and a former prosecutor, and here’s what he said recently about the Trump case underway in Florida (with some replies so you can begin to get the flavor of the moment):
You can feel how passionate these people are about resisting Trump’s authoritarianism.
Now, Snell is wrong about his characterization of the ruling, and the controversy over witnesses is not at all that Judge Cannon is “forcing the government to hand the names over to Trump’s lawyers.” More about that soon, but here we have an experienced trial lawyer who, misunderstanding the event, thinks it’s a crisis and an act of judicial malfeasance for a criminal defendant to be told the identity of the people who might testify against him. Secret witnesses are totally the norm in our legal system, says local expert.
Read all the replies if you’re drunk enough to stand them, because the army of MSNBC viewers who follow Tristan Snell are OUTRAGED that Trump thinks he’s allowed to know who’s going to testify against him in court. Put that judge in prison! She’s against our laws of convicting Trump for how bad he is!
But of course, a criminal defendant has a right “to be confronted with the witnesses against him,” which is hard to do if you hide the names. Discovery is a regular part of the path to a criminal trial, even if people with blue waves and Ukrainian flags in their Twitter bios want the judge arrested.
Now, the actual controversy isn’t about telling Trump and his lawyers who the witnesses are, because Trump and his lawyers already know who the witnesses are, or mostly know and are arguing over who should be considered a potential witness. You can read Cannon’s order here. You’ll find the actual substance of the legal dispute on pages 2 and 3:
The Special Counsel opposes unsealing the Motions to Compel to the extent that the information therein “(a) reveals the identity of any potential Government witness; (b) reveals personal identifying information for any potential Government witness…The Special Counsel also identifies “certain additional discrete sensitive information” that he argues should be redacted or sealed, and he proposes redactions for the Motions and attached exhibits.
In plain English, Jack Smith wants Trump’s lawyers to talk about the witnesses with redactions and sealed exhibits, hiding witness names and information about witnesses as they file legal arguments with the court. The special counsel isn’t trying to hide information about witnesses from Trump and his lawyers — he’s trying to hide the witnesses from the public, on the premise that witnesses in a high profile and politically controversial case could be threatened or attacked if their identities become widely known.
Cannon, being (as the news media keeps explaining) a dangerous Trump appointee and generally a monster, starts her legal analysis with this shocking quote from case law: “The press and the public enjoy a qualified First Amendment right of access to criminal trial proceedings.” She finds in established judicial practice and American culture a presumption in favor of transparency, and so has issued a careful order allowing some information to be redacted in public filings, but with clear limits that mostly require public disclosure of information like witness names. Again, look how she says this:
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’s order is entirely about the strong presumption in favor of public access to court records. You can find the judge’s detailed breakdown of what information should be filed with and without redactions on pages 7 and 8 of the order linked above, if you want to see it yourself.
But of course, we labor under the cultural rules of Orange Man Bad. Journalists are in a state of high alarm over the CONTROVERSIAL ORDER!!!! issued by Judge Cannon, and everyone at the New Republic might actually pass out at any moment:
And so on:
Judge Cannon GAVE TRUMP A DANGEROUS BOOST! OHHHH, WHAT IS SHE DOING, WHY IS SHE BEING SO DANGEROUS AND RADICAL!?!?!?
Now, here comes the big finish, and watch this carefully.
Judge Aileen Cannon, in deciding that witness names should be disclosed because of an established presumption of transparency in American jurisprudence and the right of the public to have access to court materials, outraged and terrified the news media, who are blasting her for engaging in dangerous and outrageous behavior. She also agreed with the news media, because a coalition of news media organizations intervened in the case with a motion to make the case documents public. Here’s a screenshot from page 3 of Cannon’s order:
Understand this very clearly:
- The news media formally asked Judge Cannon to require that court documents in a politically controversial case be made public, with limited redactions.
- She did. The judge decided to proceed on the basis of a presumption of a public right to transparency, limiting redactions and sealed documents.
- Then the news media aggressively attacked the judge for behaving dangerously and helping Donald Trump.
This is…I’m trying to be polite. This is the outer reaches of sleazy cheap-shot territory. You could see the bad faith from outer space.
Ask yourself what they would have said if she had ruled that witness names should be redacted in court filings, with witness-related exhibits filed under seal — the opposite of the thing she did. CONTROVERSIAL JUDGE HELPS TRUMP, HIDES INFORMATION IN CLASSIFIED DOCUMENTS CASE. Right?