Special Counsel Jack Smith is quickly learning that not all judges can be counted on to be left-wing hacks.
Judge Aileen Cannon, who is overseeing Smith’s prosecution of Donald Trump regarding classified documents kept at Mar-a-Lago, pulled no punches on Monday after unsealing two motions made by the DOJ.
The first motion has to do with a request for a Garcia hearing, which would lay out alleged conflicts of interest involving a defendant’s attorney and witnesses that are planned to be called by the prosecution, while the second motion was a request to seal a supplement in order to “to comport with grand jury secrecy.”
As you’ll see, the second motion is the one that really backfired.
The Special Counsel moves [ECF No. 97] for a Garcia hearing to inquire into
“potential conflicts of interests that may arise from attorney Stanley Woodward, Jr.’s prior and current representation of three individuals the Government may call to testify at the trial of his client Waltine Nauta” [ECF No. 97 p. 1]. Simultaneously, the Special Counsel moves for leave [ECF No. 95] to file under seal a “Supplement” containing additional information “to facilitate the Court’s inquiry” [ECF No. 96; see ECF No. 97 p. 2 n.2, p. 6]. The Special Counsel states in conclusory terms that the supplement should be sealed from public view “to comport with grand jury secrecy,” but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a sufficient legal or factual basis to warrant sealing the motion and supplement.
In other words, the special counsel wanted to keep certain things hidden from the public in order to keep mining another grand jury that doesn’t even reside in Cannon’s district for related charges.
Instead of granting the motions, the judge unsealed both of them to make them public and is now demanding answers from Smith on why he’s even continuing to use an out-of-district grand jury for matters pertinent to the prosecution in her court.
Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. The Special Counsel shall respond to that discussion in a Reply in Support of the Motion [ECF No. 97], due on or before August 22, 2023.
Cannon’s skepticism stands in stark contrast to Judge Tanya Chutkan, who is handling Smith’s D.C.-based prosecution of Trump over 2020 election matters. While that indictment is far weaker, it’s far more likely to succeed given the biases that Chutkan and juries in that area have routinely shown in the past.
That’s not to say Smith is in trouble in the Florida-based case given the evidence he’s compiled, but it is to say that it’s obviously not going to be a free-for-all, where the government can get away with anything. If only the rest of our judicial system held the DOJ to the same standards.
