'Unusual': Judge Cannon denies special counsel request for a protective order in Trump Espionage Act case

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19 July 2023

Judge Aileen Cannon has denied the Special Counsel’s request for a protective order in the Dept. of Justice’s prosecution of Donald Trump under the Espionage Act.

The Dept. of Justice had requested a protective order surrounding discovery related to classified documents, which will be a key challenge in this case that deals with top government secrets.

Judge Cannon claimed a “lack of meaningful conferral,” meaning the prosecutors and defense attorneys for Donald Trump and Walt Nauta, his co-defendant, the judge says, have not sufficiently discussed the matter. DOJ can refile.

The Guardian’s Hugo Lowell notes, “we had expected Trump to appeal the Section 3 P/O [protective order] and add to delay but the Judge denying the P/O is unusual.”

“Sure they can refile but it seems unusual for judge to straight up deny a section 3 p/o as opposed to asking defense to make objections,” Lowell also wrote. “Is there another instance where that’s happened? All these small delays will start to add up.”

“Also govt have indicated that they made efforts to confer last week and Trump team wasn’t interested,” he added.

Former U.S. Dept. of Justice national security official Brandon Van Grack explains that it is the Trump defense team that is causing what Cannon called a “lack of meaningful conferral.”

“Very odd to deny the motion vs requiring defense counsel to articulate objections,” Van Grack writes. “On Monday, DOJ explained it had reached out to defense counsel on Friday, who did not wish to confer that day or over the weekend. Defense counsel cant get classified docs w/o a protective order.”

On Tuesday, CNN had reported: “On Monday, prosecutors said in a court filing that the defendants were stonewalling on explaining why they opposed Smith’s proposal for a protective order to be issued before the classified discovery is turned over to the defendants.”

Responding to Van Grack’s observation, civil liberties and national security journalist Marcy Wheeler points out that Cannon appears to be pushing boundaries – in a legal area where she is not the decision maker.

“And as DOJ noted in their motion, CIPA [the Classified Information Procedures Act] says the judge SHALL impose a protective order,” Wheeler writes. “This is another Cannon procedural issue, not (yet) the glaring siren of concern. But WHETHER to impose a protective order is not up to her.”

Andrew Weissmann, the popular MSNBC commentator who spent 20 years at DOJ, including as the FBI General Counsel, exclaimed: “Oy.”

He added, “When one side does not meet, it is hard to confer. This legitimizes defense delay tactic.”

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