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The judge in Donald Trump's classified documents case has helped the former president's delaying tactics by granting his access to certain portions of documents given in discovery, a law professor has said.
Professor Anthony Alfieri, a University of Miami School of Law professor, was reacting to Judge Aileen Cannon's decision to force prosecutors to release certain classified information redacted in documents provided to Trump's team during discovery.
This includes the names of certain potential witnesses, the uncharged conduct of certain individuals, and the FBI codename for a separate investigation. The Department of Justice's criminal case against Trump concerns his alleged mishandling of classified documents at his Mar-a-Lago estate after the end of his presidency. Trump is currently awaiting trial on charges that he was illegally hoarding the documents after he left the White House.
The chief prosecutor in the case, special counsel Jack Smith, has strongly opposed the unsealing of certain information in the documents. Prosecutors believe it will allow Trump to seek yet more documents and delay the case further. The trial is scheduled to begin in May.
"Putting the special counsel to his proof and requiring him to turn square corners in discovery is likely to slow and prolong the proceedings, advantaging Defendants' strategy of delay," Alfieri told Newsweek.
Smith has long complained to Cannon, a federal judge in Florida, that Trump has been seeking to delay the trial until after the 2024 presidential election, in part though these hiccups in the discovery process.
If elected, Trump could then have a number of potential options to walk free from the case, including pardoning himself or appointing a favorable attorney general who would drop the case.
Newsweek sought email comment from Trump's attorney on Thursday.
Alfieri said that Cannon's decision to side with Trump on the classified documents argument "indicates that she intends to closely scrutinize the evidentiary grounds put forward by the Special Counsel" when Smith is trying to seal or redact documents being sought by Trump's defense team.
Trump is facing 40 federal charges over allegations he retained classified papers after leaving the White House in January 2021 and then obstructed efforts by the relevant authorities to have them returned.
In August 2022, Trump's Mar-a-Lago private members club was raided by federal agents who recovered several classified papers. Trump has pleaded not guilty to all charges and strongly denies any wrongdoing. He is the frontrunner for the Republican nomination in the 2024 presidential race.
Smith has strongly opposed this latest request by Trump's team on the grounds it could impede ongoing investigations.
On Tuesday, Cannon ruled in favor of Trump, stating the filing from the special counsel "fails to identify the information at issue, provide any explanation about the nature of the investigation, or explain how disclosure of the code name would prejudice or jeopardize the integrity of the separate investigation (assuming it remains ongoing)."
Cannon, a Republican, was appointed to the U.S. District Court for the Southern District of Florida by Trump and assumed office in November 2020. She had already sparked anger, and talk of removal, by delaying the case's pre-trial schedule in a move that could significantly slow down the case.
Before the decision was announced, Lawfare senior editor Roger Parloff suggested a ruling in Trump's favor could spark an interlocutory appeal from prosecutors, based on the perception that Cannon has been too favorable to the defense.
On X, formerly Twitter, Parloff referenced Section 4 of the Classified Information Procedures Act (CIPA) which allows "the United States to delete specified items of classified information from documents to be made available to the defendant through discovery" or to "substitute a summary of the information for such classified documents."
"CIPA § 4 is about prosecutors wanting to make available to defense certain classified docs, but not in their entirety. Prosecutors want to redact some of the document or provide "substitutions"—summaries of what the remainder of the document shows—to shield sensitive info they say is irrelevant to case," he wrote.
Posting on Monday, before Cannon's ruling, he said it would be "highly controversial" for her to grant the defense's request over document access and that if she did so, it could trigger an interlocutory appeal from prosecutors.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more