by Shipwreckedcrew
No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the Court…. If a party includes unredacted Sensitive Materials in any filing with the Court, they shall be submitted under seal.
That is a passage from the August 11, 2023, Protective Order issued by the Court in the case brought by Special Counsel Jack Smith against former President Trump.
Why is this now a problem for Special Counsel Jack Smith? Here is why:
b. Rule 6 materials, including grand jury subpoena returns, witness testimony, and related exhibits presented to the grand jury;
e. Recordings, transcripts, interview reports, and related exhibits of witness interviews…
This is the “nuts & bolts” of federal criminal law trial practice that is not obvious to observers who don’t work in this environment.
On September 5, 2024, the District Judge issued a “Scheduling Order” that authorized Special Counsel Smith’s office to file an “Opening Brief” in which Smith claimed he would lay out the evidence supporting each allegation in the Superseding Indictment filed on August 27, 2024. The argument made by Smith for such a filing was that the evidence presented to the Court in this fashion would be the foundation for the Special Counsel’s claim that the acts alleged in the Superseding Indictment were either private acts for which Trump enjoyed no immunity, or “official acts” for which the question of “presumptive” immunity is rebutted in the manner described by the Supreme Court decision on July 1, 2024.
On September 21, 2024, Smith filed a motion seeking Court authorization to file an oversized brief — the “Opening Brief” that he is due to file by September 26. He made some statements in the motion that lead me to believe it might be some time before the public sees any part of the Opening Brief.
First, he says the Brief itself will be under 180 pages long. The normal maximum for a Brief in the D.C. Court is 45 pages.
But Smith goes on to say that approximately 30 pages of text of 180 page motion will be from the inclusion of extensive footnotes to an “exhibit appendix.”
This appendix is not part of the 180 page brief. I suspect this appendix will be several hundred pages long — if not well over 1000 pages.
But Smith then acknowledges that the Opening Brief and the appendix will:
… contain a substantial amount of Sensitive Material, as defined by the Protective Order. Consistent with the Protective Order, the Government intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion and appendix and proposed redacted versions to be filed later on the public docket at the Court’s direction.
And that is where the Protective Order that Smith proposed and the Court accepted on August 11, 2023, is now a road block to his effort to get as much of his evidence into the public discourse prior to the November election. The other part of the Protective Order’s language that is not reflected here is the following:
The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions.
So, it is not just a matter of Smith’s Office redacting “sensitive information” and he is good to file — the Order requires Smith to “confer” with the Trump defense on the proposed redactions in any document with “sensitive information” that it wants to file on the public docket.
As noted above, “sensitive materials” include grand jury testimony or exhibits, as well as recordings, transcripts, reports, or exhibits related to witness interviews. I suspect the Trump Defense isn’t going to agree to proposed redactions submitted by Smith unless they redact everything regarding grand jury and witness statements from public disclosure. That is the main part of the material that Smith wants to get out to the public.
Remember, the reason Smith wanted this extensive and highly restrictive Protective Order was to prevent the Trump Defense — and former Pres. Trump himself — from releasing to the public any discovery materials that cast doubt upon the narrative created by Smith and set forth in his original 45 page “Speaking Indictment.” That indictment was replete with claims made by Smith about what unnamed witnesses had told the grand jury during its gathering of evidence. It also claimed that numerous Administration officials told Trump he had lost the election and there wasn’t evidence of the election fraud he was making public statements about.
Not set forth in the indictment was information about other Administration or Campaign Officials telling Trump the opposite. That would be covered by Brady disclosures. Since that information was not in the indictment it was not public record information. The Protective Order restricted the Trump Defense’s ability to fight back in the “court of public opinion” by putting this information out to rebut the claims set forth in the indictment.
But now it is Smith who wants to flood the media with grand jury testimony and statements given to law enforcement.
Right shoe, say hello to left foot.
Jerk Smith, trying to take away Trump’s ability to defend himself, denied HIMself the political use of his phony indictments. Funny.