Thread by @realjusthuman

United States v. Trump
(Docs Case)

New filing by Trump's team in support of their motion for access to Smith's CIPA 4 Filings...

"Any classification of the CIPA § 4 motion papers arises from information that was originally classified pursuant to President Trump’s authority as Commander In Chief. This information was available to President Trump while he led this Nation. Under those circumstances, it is extraordinary, unprecedented, and improper for the Special Counsel’s Office to try to withhold such information from the defense as the Office seeks to use this prosecution to target the leading candidate in the 2024 presidential election."

🔥🔥🔥🔥🔥

storage.courtlistener.com/recap/gov.usco…

"...the volume of similarly sensitive classified discovery, and defense counsel’s track record of compliance in this case, there is no merit to the Office’s contention that President Trump’s cleared counsel should not be granted attorneys’- eyes-only access to the CIPA § 4 materials so that the Court has the benefit of adversarial proceedings while evaluating these complex issues."

As a refresher, here is what CIPA Section 4 concerns



law.cornell.edu/uscode/text/18…
law.cornell.edu/rules/frcrmp/r…

Earlier this month, Smith made CIPA 4 filings in camera and ex parte, meaning they were made just between the prosecution team and the Judge.

Trump's team would like for his counsel who already have the proper clearances to be able to get eyes-only access to these filings AND for a redacted version to be placed on the public docket.

Back to the most recent filing:

"The Special Counsel’s Office has also made important concessions, which reveal that the Office’s broader position is based on an inappropriate preference for one-sided proceedings that are hidden from the public in order to serve political motivations and Intelligence Community bias."

"The Office “would not object” to the public filing of a redacted version of its brief..."

I don't know if Judge Cannon will grant Trump's counsel eyes-only access to an unredacted brief, but I do expect her to grant the motion for a redacted version to be placed on the public docket.

"CIPA does not apply to unclassified information"

"if necessary" : )

"Like the earlier motion, this is another example of a casual argument made by prosecutors who have grown too comfortable operating in the shadows and away from defense scrutiny, and overly solicitous of Intelligence Community preferences for clandestine filings." 🔥

"The prosecution’s position is also inconsistent with governing regulations, which require that portion marks “reflect the classification level of that individual portion and not any other portions.”...

Unless the Special Counsel’s Office is acknowledging an error, which would serve as yet another reason to doubt the Office’s ability to act as a reliable ex parte steward of this process, there is no basis for claiming that a paragraph portion-marked as unclassified is in fact classified."

"the Office argues that the defense does not have a “need to know” allegedly classified information in its CIPA § 4 submissions because that information is not discoverable and/or not “relevant and helpful” to the defense. Thus, the prosecution seeks to withhold classified submissions from President Trump’s cleared counsel by assuring the Court that the Office is correct about the very position we are contesting. The logic is circular and therefore unpersuasive under the unique circumstances of this case."

"The Special Counsel’s Office is not the sole arbiter of President Trump’s “need to know.”"

"Under the Sixth Amendment and other authorities, cleared counsel’s role in defending President Trump in this discovery litigation is a constitutionally required part of this case... a “lawful and authorized governmental function.”

Cleared counsel are “assist[ing]” in that function as part of a constitutional mandate, and therefore possess the requisite “need to know.”

"Furthermore, the need-to-know requirement “may be waived” for individuals who “served as President.”"

"This is another way in which President Trump’s status as a previous holder of the office sets this case apart. He is entitled to a waiver because he had access to the information at issue, even if not the particular documents...

Because these waivers may also be granted to those who previously “occupied senior policy-making positions,” and even people “engaged in historical research projects,” Executive Order 13526 §§ 4.4(a)(1), (2), there is no reasonable basis for withholding such a waiver from the defense in connection with President Trump’s efforts to prevent the prosecution from withholding evidence."

"The original classification authorities responsible for the classified information described in the CIPA § 4 filings must address these issues." 👀

"Stillwell is the most recent appellate authority that has been cited on this issue, and it strongly suggests that there are limits to the discretion to conduct ex parte proceedings under CIPA § 4 where such proceedings are not required by a case-specific reason."

"...contrary to the prosecution’s assertion, the fact that the prosecutors in Rezaq ultimately convinced the court to accept ex parte CIPA filings does not dilute the significance of the opinion as another example of a judge requiring adversarial testing of efforts to proceed ex parte. President Trump is entitled to at least that much."

"Nearly all of the cases relied upon by the Special Counsel’s Office stand for the uncontroversial proposition that courts have discretion to conduct ex parte proceedings under CIPA § 4."

Solid filing from Blanche and Kise. As I have previously said, I expect Judge Cannon will grant the request for a redacted version of Smith's CIPA 4 brief to be filed on the public docket.