Courts & Litigation Executive Branch

Judge Aileen Cannon: Champion of the Public’s Right of Access to Court Documents—Containing Names of Witnesses Against Trump

Roger Parloff
Wednesday, February 28, 2024, 8:00 AM
Why she may retract—or the Eleventh Circuit may reverse—her Feb. 6 order to unseal the identities of prospective witnesses against Trump in the Mar-a-Lago case.
Former President Donald J. Trump (Gage Skidmore,; CC BY-SA 2.0 DEED,

Published by The Lawfare Institute
in Cooperation With

In recent weeks, U.S. District Judge Aileen Cannon of the Southern District of Florida has emerged as one of most liberal judges in the country in terms of championing the First Amendment and common-law rights of the press and public to see sealed court documents. What makes her rulings particularly pioneering is that the documents in question have been filed under a protective order designed to, among other things, shield potential government witnesses from harassment, intimidation, and threats.

Cannon’s rulings have arisen in the government’s prosecution of former President Donald Trump for willful retention of national defense information and obstruction of justice. This is the same Judge Cannon who, in September 2022, during the criminal investigation that led to this prosecution, granted Trump an unprecedented civil injunction to “block the United States from using lawfully seized records” from the August 2022 search of Trump’s Mar-a-Lago residence, as the U.S. Court of Appeals for the Eleventh Circuit put it when it unanimously reversed her order in December of that year.

On Feb. 6 of this year, at Trump’s urging, Cannon ordered the unsealing—not yet carried out—of the identities of multiple prospective government witnesses against Trump in that case, together with excerpts from their interviews with F.B.I. agents or grand jury testimony. Her order also called for revealing the identities of more than 20 F.B.I. agents who participated in the Mar-a-Lago search. (A few days after that raid, a gunman armed with an AR-15 rifle and a nail gun was killed in a shootout as he attacked an F.B.I. office in Cincinnati. On social media that individual had called for federal agents to be killed “on sight,” apparently in response to the search. Since then, Trump has continued to decry the Mar-a-Lago search as an “illegal raid” and to describe those who executed it as “Gestapo officers.) 

Cannon wants the documents unsealed, she wrote, because the government failed to meet its “heavy burden” to overcome “the strong presumption of public access to the records at issue.” More specifically, she concluded that the “party requesting closure must demonstrate that such action is ‘necessitated by a compelling governmental interest and is narrowly tailored to serve that interest,’” a standard she drew from the Supreme Court’s landmark 1982 ruling in Globe Newspaper Co. v. Superior Ct. for Norfolk County. In Globe Newspaper, the Court reversed a judge’s attempt to completely exclude the public and press from the entirety of a criminal trial.

Recognizing that the public’s limited First Amendment right of access to court proceedings might not be identical to its right of access to court documents, Cannon acknowledged that “the contours of [this right] as applied to court records in criminal cases remains a developing area of the law.” She then turned to two out-of-circuit rulings for guidance. One of those was a 1983 decision by the U.S. Court of Appeals for the Ninth Circuit. There, Judge Stephen Reinhardt—then widely regarded as one of the most liberal judges in the country—wrote for a panel majority that “the public and press have a first amendment right of access to pretrial documents in general,” and “there is no reason to distinguish between pretrial proceedings and the documents filed in regard to them.” (Though Cannon doesn’t mention it, a concurring judge on the same panel protested that Reinhardt’s broad words were unnecessary to deciding the dispute before them. In that case, the trial judge had issued, on his own and without consultation with the parties, an “across-the-board sealing of all documents filed and to be filed” in the narcotics prosecution of famed automaker John DeLorean.)

We will return to Cannon’s legal analysis shortly. Suffice it to say here, however, that none of the precedents she marshaled in support of her ruling involved documents remotely comparable to those at issue in the Trump prosecution, which mainly involve statements by prospective government witnesses. These are often referred to as Jencks material, after Jencks v. United States, the U.S. Supreme Court ruling that helped set the rules governing whether and when the government needs to turn over such documents to the defense.

There don’t appear to be any precedents involving motions to unseal Jencks material. That’s probably because Jencks material is not ordinarily filed with the court at all—at least not at the pretrial stage. By statute, prosecutors are not required to turn over such material to the defense until after a witness has testified in the government’s case-in-chief. That rule is laid out at 18 U.S.C. § 3500, known as the Jencks Act, a statute Congress enacted to codify the Jencks ruling. It provides:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

This command is explicitly incorporated into the criminal discovery rules by Federal Rule of Criminal Procedure 16(a)(2):

(2) Information Not Subject to Disclosure. Except as permitted by [rules relating to defendant’s own statements, prior record, and expert witness reports], this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. §3500.

Although Jencks material need not be turned over until after a government witness testifies on direct examination, prosecutors will often, to avoid delay at trial, make it available to the defense shortly before the witness testifies.

In the Trump prosecution, however, to streamline the discovery process and as a showing of good faith as the government sought an early trial date—it originally asked for jury selection to begin Dec. 11, 2023—the government turned over “a significant portion” of Jencks material last June under a protective order issued by Mag. Judge Bruce Reinhart. That order provided that “Defendants shall not disclose Discovery Material in any public filing or in open court without notice to, and agreement from, the United States, or prior approval from the Court.”

The government apparently never imagined that a judge might later conclude that, by doing so, it had effectively converted that material into presumptively public court records that could be shielded from general dissemination only if the prosecution could demonstrate a “compelling interest” backed by a particularized showing of factual need. Yet that’s just what Cannon concluded on Feb. 6.

Two days after Cannon’s order, the government moved for reconsideration, contending that her ruling was “clear error” and would cause “manifest injustice.”

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, as 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.

In fairness to Cannon, the government’s initial briefing on this matter can be faulted. As we’ll see, when a group of media organizations filed a brief supporting Trump’s motion to unseal the exhibits, the government failed to engage with that group’s legal arguments, arguing only that the group hadn’t shown a basis for intervening. Perhaps the special counsel’s prosecutors assumed that Judge Cannon—who spent seven years as an assistant U.S. attorney, two as a line prosecutor and five in the appellate unit—would understand and share their concerns about premature public exposure of Jencks material.

She didn’t. In any case, the stakes of this dispute have only heightened since Cannon’s ruling. Trump, who has opposed the government’s motion to reconsider, has also now sought multiple additional unsealings of documents that the government also opposes, alleging that they would “unnecessarily expose potential witnesses to very real dangers of harassment, intimidation, and reprisal.”

If Cannon adheres to her Feb. 6 order, the government may have no choice but to bring a mandamus action—an “extraordinary remedy” only to be used “in exceptional circumstances of peculiar emergency or public importance.”  (While the government can take interlocutory appeals from adverse orders under the Classified Information Procedures Act, the dispute at hand involves only nonclassified information.)

If it comes to that, one has to wonder if the time will have also come for the government to also ask the Eleventh Circuit for an even more extraordinary remedy: reassignment of the case to another judge. Although rare, appellate judges will sometimes take that extreme action when they perceive that a trial judge has been recalcitrant to its rulings or has evinced unusual hostility to a party.

Before providing the timeline of the dispute in this case, some background about Jencks v. United States may help put the issues in perspective. A product of the Joseph McCarthy era, the case reached the Court in 1957. Clinton Jencks was a union official charged with having made false statements to the government in 1949 when he denied having ever been a communist in an affidavit filed with the National Labor Relations Board. The circumstantial case against him rested on testimony from two government informants.

At the time of Jencks’s trial, the government’s files were generally not discoverable at all. There was an exception, however, if, during the course of a witness’s testimony, he or she acknowledged having made prior inconsistent statements in the past. In that event, the defendant could ask the judge to inspect in camera—that is, outside the presence of counsel—the witness’s prior statements in the government’s possession. If the judge chose to grant such review and then, upon inspection, was persuaded that something in that material might be useful to impeaching the witness, he or she could order that portion of the statement turned over to the defense.

After each witness testified against Jencks, Jencks’s counsel asked the trial judge to conduct such an in camera review of the government’s file. But since neither witness admitted any prior inconsistent statements, the trial judge refused. (After Jencks’s conviction, according to a footnote in the Supreme Court ruling, one of the two witnesses entirely recanted his testimony.  Nevertheless, the trial judge refused to order a new trial.)

The Supreme Court’s majority opinion, written by Justice William Brennan, Jr., was momentous. It created a new rule that, going forward, provided defense counsel with more than Jencks’s counsel had even presumed to ask for. Henceforth, the Court held, once a witness testified—and regardless of whether any prior inconsistencies could be shown—the government automatically had to turn over all of that witness’s statements “touching the events and activities as to which they testified at trial.” Moreover, the government had to give those statements directly to the defendant—not to a judge for prior inspection and filtering.

Two justices wrote separately to object to the new rule. Justice Harold Burton, concurring, said he would have simply sent the case back to the trial judge with instructions to perform an in camera inspection. Burton believed that, given the sensitivity of materials in the government’s file, it was crucial to allow the trial judge to weigh “the nature and importance of the Government's interest in maintaining secrecy [against] the defendant's need for disclosure.”

Justice Tom Clark, in dissent, was still more alarmed by the new rule, which he said had “no support in any of our cases.” He quoted the Senate testimony of then-FBI director J. Edgar Hoover about the sensitivity of such files. Of course, today, Hoover’s reputation has been tainted by the many abuses he is now known to have committed—not a few of which involved abuse of government files. Be that as it may, his description of the sensitivity of the information contained therein, quoted at length by Justice Clark, remains relevant to what Congress had in mind when it later passed legislation about how to implement the Jencks ruling:

FBI reports set forth all details secured from a witness. If those details were disclosed, they could become subject to misinterpretation, they could be quoted out of context, or they could be used to thwart truth, distort half-truths, and misrepresent facts. The raw material, the allegations, the details of associations, and compilation of information ... are of value to an investigator in the discharge of his duty. These files were never intended to be used in any other manner and the public interest would not be served by the disclosure of their contents.

For want of a more apt comparison, our files can be compared to the notes of a newspaper reporter before he has culled through the printable material from the unprintable. The files do not consist of proven information alone. . . . One report may allege crimes of a most despicable type, and the truth or falsity of these charges may not emerge until several reports are studied, further investigation made, and the wheat separated from the chaff. If spread upon the record, criminals, foreign agents, subversives, and others would be forewarned and would seek methods to carry out their activities by avoiding detection and thus defeat the very purposes for which the FBI was created.

The statute codifying Jencks, and explaining how it would be implemented, was enacted in September 1957, three months after Jencks was decided. Justice Brennan later wrote, in a 1976 ruling, that that statute was designed to avoid “misinterpretations and misunderstandings” in applying his ruling in Jencks. “The concern was that misapplication would permit defendants ‘to rove at will through Government files’ [citing the Senate Report on the bill]." The House committee expressed its goal as that of preventing defendants from “rummag[ing] through confidential information containing matters of public interest, safety, welfare, and national security” [quoting from the House report]. Subsequent court rulings have also emphasized how the act protects witness safety. “When the statements of persons other than the defendant are sought, questions of witness safety necessarily arise,” the Fourth Circuit wrote in 1987.

Now let’s turn to the dispute in the Trump case. On Jan. 16, Trump and his codefendants filed a partially redacted motion to compel discovery with many sealed exhibits. At the same time, they asked the court to unseal everything after giving the government a chance to object. They cited only one case—an unpublished Eleventh Circuit ruling—where the court had written:

[P]ursuant to the local rules for the Southern District of Florida, proceedings are public and court filings are “matters of public record.” S.D. Fla. L.R. 5.4(a). Where a party seeks to seal documents in a criminal case, he must set forth “the factual and legal basis for departing from” the court’s open-access policy.

(The Eleventh Circuit provides that its unpublished rulings are not “binding” authority, but may be cited as “persuasive” authority.)

Two days later, the government responded. It said it supported “full transparency of the record consistent with witness safety.” Accordingly, it had no objection to unsealing most of the exhibits, but did object to unsealing portions of those that “identify any prospective Government witness, constitute Jencks Act material for the same, or contain certain additional discrete sensitive information.” The government went on:

Protection of government witnesses from harassment and intimidation is among the rationales of the Jencks Act's exemption of witness statements from discovery, and among the reasons courts have routinely held that the Government may not be compelled to turn over Jencks Act materials sooner than the statute requires.

The government then quoted from 18 U.S.C. § 3500; from Justice Brennan’s 1976 Supreme Court ruling to the effect that that law prevents “defendants from rummaging through confidential information containing matters of public interest, safety, welfare, and national security”; and from the Fourth Circuit ruling mentioned above, discussing the witness safety concerns underlying the act. The government’s response continued:

These concerns apply in this case just as in any other. That the Government has exceeded its obligations and produced Jencks Act materials to the defense well in advance of trial—subject to a protective order—in no way dilutes the rationale for keeping the materials out of public view. Furthermore, although safety of prospective witnesses is a prime concern, it is not the only one. Public disclosure of witness identities or their statements in advance of trial also risks infecting the testimony of other witnesses or unnecessarily influencing the jury pool.

The special counsel’s office then laid out for Cannon, in a sealed filing, the specific redactions it sought. (Later, in its motion to reconsider, the government quantified the breakdown of the redactions it had sought: Of the 70 exhibits Trump had attached to its motion, the government voiced no objection to 42; proposed uncontroversial redactions—like social security numbers—to 17; sought more substantial redactions in five, and asked that six documents remain completely sealed.) 

In his response, Trump did not object.  “President Trump takes no position on any particular request for a redaction by the Special Counsel’s Office,” his attorneys wrote. At the same time, they commented that the government had not substantiated its “vague claims” about “witness safety.”

That same day, however, on Jan. 22, the Press Coalition—a group of media organizations—filed a 12-page motion seeking to intervene and moving to unseal all the exhibits in question. It argued that the records were “presumptively public” and that the government had failed to carry its “heavy burden” to show otherwise.

One of the Eleventh Circuit decisions the Press Coalition cited prominently—if one read it—actually seemed to cut against the grain of its argument. That was Chicago Trib. Co. v. Bridgestone/Firestone, Inc., a 2001 decision in a civil wrongful death action arising from a national controversy over auto crashes allegedly caused by faulty tires. After settlement of the case, media organizations moved to unseal discovery materials. The trial judge granted the motion, finding that the tire company, claiming in conclusory fashion that the documents contained “trade secrets,” had failed to show a “compelling interest” in keeping them sealed. But the Eleventh Circuit reversed. The lower court judge had applied the wrong standard, the court explained. To keep sealed discovery documents secret, the tire company needed to show only “good cause”—a much less demanding standard. “This standard requires the district court to balance the party's interest in obtaining access against the other party's interest in keeping the information confidential,” the panel wrote.

At this point, the government appears to have made a very serious miscalculation. While it filed papers opposing the Press Coalition’s motion—arguing that the group had not made out the showing necessary to intervene in the case—it did not engage with the coalition’s substantive legal arguments.

On Feb. 6, Cannon issued her order. She adopted many of the Press Coalition’s arguments, prominently cited Chicago Tribune in support, and granted unsealing of the Jencks material and identifications of F.B.I. agents involved in the search. She then denied the Press Coalition’s application to intervene as moot.

In its motion to reconsider, filed two days later, the government finally took on the Press Coalition’s arguments for the first time. It argued that, under binding Eleventh Circuit precedent (quoting Supreme Court precedent), the qualified First Amendment right of access to a criminal proceeding was governed by “(1) ‘whether the place and process have historically been open to the press and general public’; and (2) ‘whether public access plays a significant positive role in the functioning of the particular process in question.’” Using these guideposts, the material in question obviously failed both prongs of the test. Historically, Jencks material has never been open to the public, and making it so would defeat a host of important public policy goals. 

The government then cited, for the first time, the Eleventh Circuit’s en banc ruling in United States v. Anderson—a case that appears to be remarkably apt. There, a magistrate judge had ordered the government to provide the defense with a bill of particulars identifying “unnamed and unindicted coconspirators” in the defendants’ RICO indictment. The government then did so, while also filing the document with the court under seal. A newspaper then sought to unseal the bill of particulars. The lower court judge denied the request, finding that the “harm to the individuals named . . . outweighed the public’s interest in learning the information before trial.”

The Eleventh Circuit affirmed. The bill of particulars had merely facilitated “voluntary discovery,” it held, and was “not a court document the public and press are entitled to view.” In support of this conclusion it quoted Federal Rule of Criminal Procedure 16(a)(2)—the provision incorporating the restrictions of 18 U.S.C. § 3500, the Jencks Act—which specifies that it “does not authorize the discovery or inspection of . . . statements made . . . by government . . . witnesses, or by prospective government . . . witnesses."

Also in its motion to reconsider, the government, for the first time, outlined some of the factual bases for fearing witness harassment in this case. In fairness to the government, it’s not at all clear that when a statute singles out a category of documents—like Jencks material—for special treatment precisely because of the need to keep such material from public view that the prosecution needs to make any sort of additional case-by-case showing of need to keep it under wraps. Moreover, almost all of the examples the government provided should have been abundantly apparent to Cannon from day one, as they had all been widely reported.

Back in August 2022, for instance, when Magistrate Judge Reinhart ruled on a motion to unseal the Mar-a-Lago search warrant affidavit, he observed: “Given the public notoriety and controversy about this search, it is likely that even witnesses who are not expressly named in the Affidavit would be quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated.”

Reinhart himself was reportedly subjected to numerous death threats after the public learned that it was he who had granted the warrant permitting the search of Mar-a-Lago. Cannon herself and U.S. District Judge Tanya Chutkan of Washington, D.C., who presides over the separate federal prosecution of Trump in that jurisdiction, have each been subject to death threats—threats that have actually led to criminal prosecutions, as the government observed.

In December, moreover, the D.C. Circuit, in upholding portions of a partial gag order Chutkan entered against Trump, commented that many known witnesses against Trump in the past have had their “lives turned upside down” after their roles were publicized. That court also quoted the gag order ruling by New York supreme court justice Arthur Engoron, presiding in the state attorney general’s civil action against Trump, who averred that his own chambers had been “inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters and packages.”

Cannon plans to hear argument on all the outstanding unsealing disputes at a scheduling hearing March 1 in Fort Pierce, Florida—at which she is also expected to postpone the trial date, currently set for May 20.

Although many of my press colleagues doubtless disagree, I hope, for the sake of the integrity of this prosecution and of criminal prosecutions generally, that Cannon will find the government’s fuller briefing persuasive. If not, maybe the Eleventh Circuit will. 

Roger Parloff is a journalist based in Washington, D.C. In recent years, he has regularly contributed to Yahoo Finance and Air Mail News, and has also been published in The New York Times, ProPublica, New York, and For 12 years, he was the main legal correspondent at Fortune Magazine. He is an attorney who no longer practices. He is a senior editor at Lawfare.

Subscribe to Lawfare