Special counsel prosecutors have produced to Donald Trump a sealed exhibit about threats to a potential trial witness after the federal judge overseeing his prosecution for retaining classified documents ordered the exhibit turned over despite the prosecutors’ objections, a person familiar with the matter said.
The exhibit was a point of contention because it detailed a series of threats made against a witness who could testify against the former president at trial, and the matter is the subject of a criminal investigation by a US attorney’s office. Prosecutors had wanted to withhold it from Trump’s lawyers.
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But the presiding US district judge Aileen Cannon ordered the exhibit that prosecutors in the office of special counsel Jack Smith had submitted “ex parte” – or without showing it to the defense – to be transmitted to Trump’s lawyers after reviewing its contents and deciding it did not warrant that protection.
The prosecutors complied with the order before a Saturday deadline without seeking a challenge – though the justice department would typically be loath to disclose details of an ongoing investigation, especially as it relates to the primary defendant in this case, legal experts said.
The justice department may have decided it was not appealing the order because the exhibit itself is part of a motion from prosecutors asking the judge to reconsider two earlier rulings that would have the effect of making public the identities of dozens of other witnesses who could testify against Trump.
At issue is a complicated legal battle that started in January when Trump filed a motion to compel discovery – a request asking the judge to force prosecutors to turn over reams of additional information they believe could help them fight the charges.
The motion to compel was partially redacted and submitted with 70 accompanying exhibits, many of which were sealed and redacted. But Trump’s lawyers asked that those sealed filings be made public because many of the names included in the exhibits were people already known to have worked on the documents investigation.
Prosecutors asked the judge to deny Trump’s request to unseal his exhibits, using broad arguments that they would reveal the identity of potential witnesses, two sub-compartments of what is described as “Signals” intelligence, and details about a separate probe run by the FBI.
The special counsel’s team also asked to submit their own set of sealed exhibits when they filed their formal response to Trump’s motion to compel. The government’s exhibits involved memos of interviews with witnesses and likely testimony from witnesses, according to the three-page filing.
Cannon in February issued two rulings: one on Trump’s request and one on prosecutors’ request.
With Trump, the judge found that personal identifying information of witnesses and the information about “Signals” intelligence should remain under seal, but everything else could be public. And with prosecutors, she granted their request to file their own exhibits under seal.
The twin rulings appear to have caught prosecutors by surprise. They have previously been successful in keeping materials that could reveal witness identities confidential, and they formally asked Cannon to reconsider those orders.
A motion for reconsideration is significant because if Cannon denies the challenge, it could pave the way for prosecutors to seek an injunctive appeal at the US court of appeals for the 11th circuit using a writ of mandamus – essentially, an order commanding Cannon to reverse her decision.
Cannon has previously drawn scrutiny from the 11th circuit. Before Trump was indicted, she upended the underlying criminal investigation by issuing a series of favorable rulings to Trump before the appeals court ruled she never had legitimate legal authority to intervene.
As part of prosecutors’ motion for reconsideration, they asked to submit alongside their court filings a third set of exhibits under seal and ex parte. Cannon agreed, pending her personal review of their contents. On Friday, she ruled they should not be ex parte – and turned them over to Trump, as well.
