Showdown in Florida

As the special counsel's J6 case against Donald Trump in Washington implodes, things are heating up in the classified documents in Florida.

It wasn’t supposed to be this way.

All the activity and drama surrounding Special Counsel Jack Smith’s two criminal indictments against Donald Trump was slated to begin in the nation’s capital this week. In preparation for the history-making trial originally set for March 4 on Smith’s four-count indictment against Trump for January 6 and alleged efforts to “overturn” the 2020 election, journalists from around the world would have descended on Washington to cover every moment. 

Protesters on both sides would have staked their ground outside the E. Barrett Prettyman courthouse just a few blocks from the U.S. Capitol with political tension at an all-time high. Trump’s long-time legal tormentors including Andrew Weissmann and Peter Strzok would have shed tears of joy during cable news appearances at the thought of finally seeing Trump enter a federal courtroom to face near-certain conviction in the most Democratic city in the country. 

But official Washington and the national news media instead are shedding tears of anguish and rage after the Supreme Court announced on Wednesday it would consider Trump’s request to review lower court rulings that rejected his claims of presidential immunity from criminal prosecution; oral arguments are set for the week of April 22, around the same time the DOJ anticipated Trump’s J6 trial in Washington would be wrapping up. The SCOTUS schedule also serves as a continued hold on the pretrial proceedings. (I explain it all here.)

So rather than prepare to cover Trump’s first criminal trial within the friendly confines of the nation’s capital, downcast reporters are in the Sunshine State to cover what should be a barnburner of a hearing in Judge Aileen Cannon’s courtroom on Friday in the classified documents case.

Sunshine is the Best Disinfectant

Trump faces more than three dozen counts for illegally retaining national defense information and obstructing justice in Smith’s other indictment against the former president. But both the judge and potential jury pool in southern Florida represent more hostile territory for the special counsel’s office. In fact, Cannon first earned the ire of the news media and Weissmann-types after she appointed a third party to handle sensitive materials seized at Mar-a-Lago during the FBI’s August 2022 raid. Cannon at the time criticized the DOJ for leaking information to the media and the FBI’s mishandling of privileged records after the raid.

Her order appointing a so-called special master was overturned by the appellate court, but Cannon remains unbowed. Unlike her counterpart in Washington, Cannon does not act as the automatic rubber stamp for the Department of Justice, which is why the same legal “experts” currently denouncing SCOTUS as a tool of Trump call for her recusal every time she denies a government motion. She has continued to express skepticism about the special counsel’s representations to the court—which is one reason why she set a March 1 status months ago.

During a hearing last November, Cannon openly doubted the government’s insistence that the March 4 trial in Washington would conclude in time to allow Trump and his lawyers to prepare for a May 20 trial in Florida. 

She reminded Jay Bratt, one of the DOJ’s lead prosecutors in the classified documents case with whom she clashed over the special master matter, that the government brought both unprecedented criminal cases within a few months of each other, creating the scheduling nightmare. “Do you know of any other case where the same defendant is facing indictment in multiple jurisdictions and DOJ has taken the position that there should be no consideration to the fact that, of course, the defendant needs to be able to assist in his defense, and there becomes an unavoidable reality that the schedules collide?” Cannon asked Bratt. 

He did not answer.

When she noted the massive amount of discovery—1.3 million pages of unclassified discovery, 5,500 pages of classified records, and the equivalent of five years of security footage from Mar-a-Lago—Bratt downplayed the issue. Cannon also scolded the DOJ for delaying the creation of a secure facility where defense lawyers were required to view sensitive materials.

A few days later, citing “challenges to ensuring Defendant Trump has adequate time to prepare for trial and to assist in his defense,” Cannon delayed the existing pretrial deadlines and scheduled a hearing on March 1 to receive an update as to the status of the Washington trial.

Should be fun to watch Bratt struggle to explain why the D.C. trial is on indefinite hold.

To Seal or Not to Seal?

But Trump’s motion asking Cannon to make public now-sealed evidence should produce the hottest fireworks on Friday. Last month, lawyers representing Trump filed a 68-page motion arguing the scope of the prosecution team extends beyond the special counsel to include the Biden White House, the National Archives, the intelligence community, top officials at the DOJ, the FBI Counterintelligence division, the Energy Department, and the National Security Council; records, according to the defense, demonstrate a high level of collusion between all parties. “These revelations are disturbing but not surprising,” the defense attorneys wrote in the January 16 motion.

The defense asked Cannon to authorize the unsealing of a large swath of materials, a request quickly opposed by the special counsel, who argued that the public docketing of information could result in witness harassment and intimidation among other privacy concerns.

But Cannon, once again, expressed skepticism at Smith’s claims. “[A] party seeking to seal or redact court filings, including pretrial motions, carries a heavy burden,” she wrote in a February 6 order that granted much of what the defense wanted. “Following an independent review…the Court determines, with limited exceptions…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.”

As far as allegations of witness harassment, Cannon called Smith’s answers “sparse and undifferentiated,” and concluded the special counsel “fail[ed] to provide the Court with the necessary factual basis to justify sealing.” But at Smith’s request, Cannon put a temporary hold on her order and set deadlines giving both sides more time to make their case--arguments she will consider in open court on Friday.

The special counsel’s approach in the Florida case is contrary to his approach in the Washington case. For the latter, Smith repeatedly cites the “public” as an interested party in the prosecution—insisting the “public” has a right to a speedy trial (nope) and to learn all the details of Trump’s alleged crimes for Jan 6.

But in the Florida case, Smith is fighting tooth and nail to keep from the public voluminous amounts of court files unrelated to the classified nature of the core allegations.

Luckily, if anyone can straighten out Smith’s apparent case of schizophrenia, it is Judge Cannon.