Thread by @NormEisen

Lotta news but something MAJOR happened last night

Smith filed motion for Judge Cannon to reconsider order unsealing names & stmts of some witnesses in MAL docs case

This could be start of getting Cannon thrown off case under 11 Cir bias rules👇(1/x)
slate.com/news-and-polit…

Cannon already has two strikes against her from when she oversaw the docs investigation

First the 11th Cir preliminarily reversed a stay she imposed

And then they permanently reversed her outrageous appointment of a special master

This latest order may be strike three…

Why? 1st of all, reconsideration is an “extraordinary remedy that should be employed sparingly” to “correct CLEAR ERROR and PREVENT MANIFEST INJUSTICE”

So the fact that Smith made this motion shows how wrong Smith thinks Cannon was & how dangerous he thinks her order was 3/x

And what Smith argues is pretty shocking

He shows how Cannon applied the *wrong standard* to make the Gov to unseal discovery materials

She said the Gov failed to meet the very high bar of showing both a “compelling interest” AND “narrow tailoring” 4/x

But that’s wrong — that extremely stringent requirement shouldn’t be applied to discovery materials attached to a discovery filing

As Smith shows, the press and the public do not have the right, under the 1st Am or common law, to access *discovery materials* 5/x

In fact Smith goes through the cases Cannon herself cited in her own order & explains why they actually do NOT support her position 6/x

Instead the Gov only needs to meet a much easier standard — they just have to show there was “good cause”

And Smith outlines how that test was clearly met — cataloguing the “significant interests in maintaining confidentiality” 7/x

Smith focuses on risks of witness intimidation—which he argues are “far from speculative in this case” & lists people incl judges & Smith’s staff who’ve been threatened

This is key bc it addresses threat of violence that lurks behind each of Trump case, not just the MAL one 8/x

As Smith writes there “is a well-documented pattern in which judges, agents, prosecutors, and witnesses involved in cases involving Trump have been subject to threats, harassment, and intimidation”

Smith points out that EVEN CANNON HERSELF has received death threats

Smith argues Cannon’s conclusion that Gov’s “witness-safety concerns are too speculative...is misplaced” bc a “court’s duty is to prevent harms to the witnesses or the judicial process” preemptively

That is a judge’s core responsibility—& Smith alleges Cannon has failed 10/x

And he even points to the Bob Menendez case in New York as an example of what a court should do

There the judge denied a similar motion to unseal discovery materials — even without the voluminous evidence of “concrete harms to witnesses” in the Trump case 11/x

Smith argues it would be a “manifest injustice” if Cannon made witnesses’ identities & roles public immediately & exposed them to harm

He goes through each request for sealing exhibits (or imposing limited redactions), showing why they were narrow, tailored & appropriate 12/x

So where does that leave us?

Whatever happens next will be dramatic

Either Cannon reconsiders, which would be an admission of a big screwup, or she sticks with her ruling 13/x
storage.courtlistener.com/recap/gov.usco…

And if she sticks with her ruling, it looks like Smith may appeal straight to 11th Cir

That’ll set up another battle over Cannon—the 11th Cir slapped her down when she appointed a special master to review the classified docs during investigation 14/x
reuters.com/world/us/us-ap…

It’s been clear that Cannon should’ve recused or been removed from this case

& she appears to be continuing her pattern of unusual erroneous rulings that consistently & improperly favor Trump

That conflict may now be coming to a head…stay tuned 15/15 slate.com/news-and-polit…