Special counsel Jack Smith’s team of lawyers convened privately with the federal judge presiding over Donald Trump’s Mar-a-Lago classified documents case on Wednesday, seeking to nail down which records are off limits due to sensitive information.
Smith’s team of prosecutors appeared before U.S. District Judge Aileen Cannon on Wednesday morning for a hearing to evaluate classified filings by the special counsel, which are being sought by lawyers for the former president and his two co-defendants. In Florida, Trump faces 32 counts of unlawful retention of national defense records and eight additional charges that include making false statements and a conspiracy to obstruct an investigation.
“This hearing shall be conducted on a sealed, ex parte basis in a facility suitable for the discussion of classified information,” Cannon said of the Wednesday hearing in a Jan. 11 paperless order, referring to a hearing that is outside the presence of attorneys for the defendants.
Appearing before Cannon were special counsel attorneys Jay I. Bratt, David Harbach, Julie A. Edelstein, and J.P. Cooney. Smith did not attend the roughly three-hour hearing, according to a paperless minute entry on the docket Wednesday afternoon.
The hearing came after Trump’s lawyers filed a motion last month seeking “attorneys’-eyes-only access to these filings so that we can challenge [Smith’s] assertions in adversarial proceedings.”
Trump’s attorneys more recently lodged allegations in a Jan. 16 motion to compel discovery evidence that Smith’s team is seeking to “avert its eyes from exculpatory evidence in the hands of the senior officials,” not just at the National Archives but at other agencies such as the FBI, the Justice Department, the White House, the Office of the Director of National Intelligence, and others.
Smith responded to the defendants two days later, arguing the government “supports full transparency of the record” in part because that transparency will “expose the defendants’ distortions of the factual and legal landscape in their motions to compel.”
While the details of Cannon’s discussion with prosecutors will not be made public, the hearing could have significant ramifications for the trial tentatively slated to begin on May 20, given that if Cannon rules even partially in favor of Trump, the Justice Department could seek to appeal.
Appealing a decision to grant Trump’s attorneys access to classified filings would be interlocutory, which means a higher court would need to weigh in and decide the dispute before a trial can commence — thereby likely causing some delay in the trial schedule.
Wednesday’s meeting also comes ahead of hearings on the handling of classified information at issue in the case, which are governed by the Classified Information Procedures Act and scheduled for Feb. 12 and 13.
The motions from December 2023 and the upcoming hearings surround Section 4 of CIPA, which lays out how prosecutors dealing with classified information in litigation can ask a court to withhold certain material that is not “relevant or helpful” to the defense.
Although the trial is set to begin in May, delays in the case could lead to that date being pushed back at a scheduling conference on March 1.
Trump faces 32 counts of willful retention of national defense information, one count of conspiracy to obstruct justice, three counts of withholding or concealing a document, two counts of false statements, and two counts of altering, destroying, mutilating, or concealing an object or record. Trump and his two associates, Walt Nauta and Carlos De Oliveira, have pleaded not guilty.