Special counsel fights judge's order allowing Trump to reveal witness identities in Mar-a-Lago case

Courts Jack Smith 082823 AP J. Scott Applewhite

Special counsel Jack Smith is asking Judge Aileen Cannon to reconsider a ruling that would allow former President Trump’s legal team to publicly disclose witness identities and their testimony to the court docket.

Trump’s team has sought to attach evidence given to them during the discovery process in other court filings set to be publicly posted in connection with the Mar-a-Lago documents case.

The Justice Department argued late Thursday that Cannon erred in her legal rationale for allowing them to do so, a move that risks exposing some two dozen witnesses to harassment as she requires no redactions.

“That discovery material, if publicly docketed in unredacted form as the Court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment,” prosecutors wrote in the 22-page filing.

It’s something they say “has already happened to witnesses, law enforcement agents, judicial officers, and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved.” 

The filing came the day after another from the special counsel’s team noting that federal authorities are already investigating social media threats made against one of the witnesses in the case.

Though it is not common to ask a judge to reconsider one of their own orders, this would be the second time the Justice Department has done so in the case. The earlier request produced a decision from the 11th Circuit Court of Appeals that legal observers pegged as a “bench slap” for Cannon.

In the filing, prosecutors again point to the 11th Circuit, noting the court upheld a different standard for evaluating when documents relating to discovery must be sealed.

“Because the Court applied the wrong legal standard—which, as explained below, the Government did not discuss in its prior filing—reconsideration is warranted to ‘correct clear error,’” prosecutors wrote.

“Second, in addition to ensuring that the correct legal standard is applied, reconsideration is warranted to ‘prevent manifest injustice,’” they added.

If Cannon’s decision stands, Trump’s filing would also reveal the identities of witnesses not expected to testify at trial who “would otherwise be able to retain their anonymity and privacy absent the Court’s Orders.”

Cannon has given Trump’s team until Feb. 23 to respond.

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