Sealed hearing ordered in docs case

The judge hearing Trump’s “Documents Case” has scheduled a sealed hearing on an earlier motion for a confidentiality order. This could be a resolution of an earlier controversy involving sealed filings that the judge ordered stricken from the record. It could also solve the mystery of a set of sealed filings entered into the record beginning August 11.

Why a sealed hearing?

As noted above, someone – perhaps the team under Special Counsel Jack Smith – made two pairs of docket entries. The entering party entered one pair on August 11 and the other on August 14. Then the docket shows two entries on August 14 labeled “SYSTEM ENTRY – Docket Entry 119 restricted/sealed until further notice” and “Description not available.”

On July 27, the government had moved for a protective order and made a concrete proposal. After that came the two sealed entries 95 and 96. Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida ordered both those entries stricken from the record. Apparently they contained information from the grand jury that heard the January 6 case. That caused the judge to question the “legal propriety” of using an out-of-district grand jury to gather evidence on the case before her.

On August 9, the Trump team filed a response in opposition to the protective order motion. They expressed fear that they would not have access under it to all relevant discovery. To resolve any matters of convenience, they proposed re-establishing a secure facility that once existed in Trump’s Mar-A-Lago estate. In addition, Trump’s co-defendant Waltine Nauta, his valet, objected that he might not have access to key evidence at all.

The government responded on August 14, saying there was no need to “reestablish” any secure area that Trump once used while President. They didn’t seem to know where that secure area would be.

Coming to the motion

Trump had suggested in his response that he would gladly provide details on a “reestablished” secure location. But the team wished to do so in chambers, not in open court, for security reasons.

Then on August 15 the other codefendant, Carlos Oliveira, appeared for arraignment. Magistrate Judge Shaniek Mills Maynard handled the arraignment and then added this to the docket entry:

Defendant waives formal reading of the Superseding Indictment and enters a plea of not guilty, demands a trial by jury, and requests entry of Standing Discovery Order. Due Process Protections Act (BRADY) Order entered. Court Reporter: Diane Miller, 772-467-2337 / Diane_Miller@flsd.uscourts.gov.

It is ORDERED AND ADJUDGED that pursuant to the Due Process Protections Act, the Court confirms the United States obligation to disclose to the defendant all exculpatory evidence- that is, evidence that favors the defendant or casts doubt on the United States case, as required by Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and ORDERS the United States to do so. The government has a duty to disclose any evidence that goes to negating the defendants guilt, the credibility of a witness, or that would reduce a potential sentence. The defendant is entitled to this information without a request. Failure to disclose exculpatory evidence in a timely manner may result in consequences, including, but not limited to, exclusion of evidence, adverse jury instructions, dismissal of charges, contempt proceedings, disciplinary action, or sanctions by the Court.

PAPERLESS STANDING DISCOVERY ORDER: The defendant(s) having been arraigned this date in open Court, it is Ordered that within 14 days of the date of this order that all parties to this action shall review and comply with Southern District of Florida Local Rules 88.10 (Criminal Discovery), and 88.9(c) (Motions in Criminal Cases). Upon a sufficient showing, the Court may at any time, upon a properly filed motion, order that the discovery or inspection provided for by this Standing Order be denied, restricted or deferred, or make such other order as is appropriate. It is expected by the Court, however, that counsel for both sides shall make a good faith effort to comply with the letter and spirit of this Standing Order. It shall be the continuing duty of counsel for both sides to immediately reveal to opposing counsel all newly discovered information or other material within the scope of Local Rule 88.10.

On Wednesday August 16 the government moved for another conflict-of-interest hearing.

Apparently John Irving, representing Mr. Oliveira, also represents three witnesses the government might call to testify.

Then yesterday came the order for a sealed hearing.

This hearing follows the procedure in Section 3 of the Classified Information Protection Act. Therefore it supersedes an earlier open hearing, previously scheduled for August 25. Accordingly, Judge Cannon canceled that hearing and will schedule the sealed hearing “at a designated time and place.”

The hearing could in theory take place in Judge Cannon’s chambers (in camera), as the Trump team earlier requested. Wherever it takes place, only the judge and attorneys are likely to be present. (Judge Cannon specifically waived appearances by all defendants.) But she set a deadline for motions for anyh Section 3 protective order as to Mr. Oliveira, of August 22. Clearly that shows the sealed hearing cannot take place before that date, and likely not until after it.

Judge Cannon made clear she intends to resolve all classified documents protection issues at that hearing.