Just saw an article that the Washington judge said the prosecution can present unclassified summaries. Cannon made a separate order saying you couldn't in the documents case.
Article part way down this page:
https://news.yahoo.com/north-dakota-gop-party-leader-215159018.html
These are discovery orders, which do not apply to orders
in limine on what can be presented to a jury. In one case the judge allows that discovery may be satisfied by presenting unclassified summaries of classified materials. I have also seen this done by allowing redacted versions. This is presumably so that the non-government party does not have to have a security clearance to receive them, and so that they can be reviewed in settings suitable for non-classified materials (i.e., outside a SCIF).
Again this goes to the point that the contents of classified materials are only marginally relevant compared to the classification status. The non-cleared party will generally want to know the contents only to make a case that actual harm to national security is limited.
But we also do this for proprietary information in civil cases. If discovery requires us to disclose documents that, say, reveal some of our proprietary methods and practices which we desire to remain trade secrets, we would first seek leave to satisfy discovery by redacted disclosure. The judge could agree that some part of a discoverable document is both immaterial to the case and too revealing and allow it to be redacted. The fallback position is the standard protective order, but this is often unsatisfying because while a judge can prevent a receiving party from using material received in discovery for any purpose outside the suit, there's literally no way to prevent that information from being retained in the other party's brain. If through discovery we get information on a competitor's trade-secret practices, there's very little they can do to prevent our own operations from being informed and aided by that knowledge. So long as we don't overtly copy them, there's not much the other party can do.
Judge Cannon rules differently in her case because she has already ordered that Trump's defense counsel be cleared to review the documents in their entirety. That means the government is limited in in the protective orders it can request. The actual text of the motion and order touch on something that isn't really talked about in the Yahoo article. The special counsel is asking for an order preventing classified materials from being given to the defendant
per se, i.e., Trump. Trump's attorneys who have the proper clearances can review the content of the documents for whatever reason they think is pertinent to the case. But now Judge Cannon has ruled that Trump
himself gets the documents.
Reading between the lines, you can see why the special counsel wants this. The government has spent the better part of two years clawing back from Trump documents he never should have kept after leaving office. Now thanks to the discovery process, he gets to have them again. Yes, in cases where discovery involves privileged or restricted information, a protective order prevents any party receiving discovery from divulging it further. This is what we talked about in the Alex Jones case. But how confident are we that Trump is going to obey a protective order?
The special counsel wasn't going to win this, although Judge Cannon's order is fairly snarky (as noted). He tried to argue that requirements of disclosure to "the defendant" could mean just the defendant's attorneys and not the defendant
per se. That's really never going to fly in a legal sense because the defendant maintains nominal control over how the defense is conducted, even if it's the attorneys who do the strategizing. Just because the defendant speaks and acts through his attorneys as regards the court doesn't mean he stops having rights afforded to "the defendant" by law and by the rules of evidence.
