“Unusual and irresponsible”: Expert says Judge Cannon seems to be “willfully aiding” Trump strategy

Former President Donald Trump arrived at the federal courthouse in Fort Pierce, Florida, Monday to attend a closed-door hearing in the classified documents criminal case where he is facing charges for taking classified documents with him after he left the White House.

U.S. District Judge Aileen Cannon, who was appointed to the federal bench by Trump, may experience heightened pressure as a result of the former president's presence in the courtroom, where she has to deliberate on whether prosecutors from special counsel Jack Smith's office should be authorized to withhold or redact specific classified documents slated for disclosure during discovery, legal experts say.

The hearing is being held in a Sensitive Compartmented Information Facility or SCIF where prosecutors and the defense team will have separate sessions to make their arguments in front of the judge. Trump’s lawyers are poised to ask for access to classified evidence that has not yet been disclosed to them, CNN reported. However, prosecutors and intelligence agencies plan to withhold this evidence, potentially providing only summaries due to its sensitive nature.

Certain classified information can be discussed only in a SCIF since it’s a room that has been “designed and reinforced” in a way that “prevents electronic eavesdropping,” former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. Trump's presence in the hearing would be “noteworthy” since defendants typically do not participate.

“Here, however, Trump is a unique defendant in that he had lawful access to this information at the time he received it while president of the United States,” McQuade said. “The question here is whether he unlawfully retained it after his presidency ended, and whether he obstructed the investigation.”

In other words, he already knows the content of these documents, and so discussing it with him today will not create any additional compromise of that information, she added.

The Trump legal team is likely to base some of Trump’s trial defenses on the assertion that the classified documents he was accused of retaining no longer qualified as "national defense information," as defined in the Espionage Act, when he was found with them in 2022, sources told The Guardian. To support this argument during the trial, the Trump legal team will argue that they require a significant portion of the classified documents to remain un-redacted so they can provide the information within a broader context, the sources added.

“Judge Cannon’s agreeing to let Trump and his lawyers view these documents privately, with her but without prosecutors present, is highly unusual and irresponsible,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

The meeting includes viewing highly classified materials, some of which may involve national security matters. 

Trump and his lawyers viewing these documents “needs to be made as secure as possible to prevent disclosure and dissemination,” Gershman said. 

Cannon initially ordered Smith's team to file a set of documents on the public docket, ABC News reported. However, the special counsel in a motion recently urged the judge to reconsider this ruling, citing concerns that it could expose potential witnesses to risks of threats, intimidation and harassment due to the disclosure of their names.

"These risks are far from speculative in this case," Smith wrote in his filing. "Witnesses, agents, and judicial officers in this very case have been harassed and intimidated, and the further outing of additional witnesses will pose a similarly intolerable risk of turning their lives upside down."

Given the nature of these documents, including the identities of government witnesses, the “risk of threats and intimidation” to these witnesses is “very real and deeply concerning” to the government, Gershman explained. The decision by Judge Cannon to permit this type of meeting is “irresponsible and clearly serves the interests” of Trump.  

The ex-president’s lawyers will have access not only to confidential materials, but virtually the prosecution’s entire files, including sensitive materials about witnesses, their identities and what they said, he continued. 

“Also, in a closed-door session with a judge who has already made many unduly favorable rulings for Trump, the defense may be able to influence the judge as to which documents they feel are prejudicial to their case, or even helpful to their case, which the judge likely may agree with,” Gershman said.

While Trump can attend the hearing, his co-defendants in the case, Walt Nauta and Carlos de Oliveira, are not allowed to be there as they lack security clearance. Nauta, Trump's valet, and de Oliveira, a former maintenance worker at Trump's Mar-a-Lago Club, were charged with obstruction for their alleged efforts to conceal the classified documents from government officials. 

After Cannon is done hearing arguments from Trump and his two co-defendants on their defense theories of the case, Smith will present arguments to the judge excluding the presence of the former president’s legal team.

The problem is the hearing is “one-sided,” Gershman said. The prosecutors won’t be in the same facility at the time Trump and his lawyers view the materials so if Trump “inadvertently” says something “incriminating,” nobody will know about it except his lawyers and the judge.

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The trial is currently set for May 20, but ongoing disagreements among the parties may push back this date, according to ABC News. Trump's legal team has sought to delay the trial for several months, arguing in a court filing last year that the exceptional circumstances of the case warrant no urgency in speeding up the proceedings.

"Trump's strategy is twofold,” former federal prosecutor Neama Rahmani told Salon. “Delay until after November in the hope that he wins the presidency. And pressure the government to admit classified documents in their unredacted form in the hope that they decide not to move forward with certain categories of evidence. This is a defense strategy known as 'graymail.'”

The longer these side issues over documents and continued litigation take, the longer the delay in starting the trial, Gershman explained. That’s “clearly” the strategy of the defense, and it appears Judge Cannon is “willfully aiding that strategy.”