Special counsel Jack Smith is fighting to seal a proposed questionnaire that will be used to select the jury in the classified records case against former President Donald Trump and two co-defendants, coinciding with a judge’s decision to block defense attorneys’ access to some confidential records obtained from Mar-a-Lago.
Smith’s prosecutors told U.S. District Judge Aileen Cannon on Wednesday they are concerned that potential jurors with “strong views” about Trump may attempt to rig the jury selection system by preparing answers if the list of questions becomes public ahead of the trial, which is likely to begin sometime this summer.
“Potential jurors may have strong views about Trump, his co-defendants, or the Government in this case,” Smith’s team wrote in a court filing Wednesday, arguing that “providing advance information about the contents of the questionnaire increases the risk that potential jurors may craft their answers to increase their odds of serving or avoiding service on the jury.”
Jury questionnaires are commonly used to filter the pool of potential jurors by proposing questions that could reveal any bias related to the case or other reasons why a prospective juror may not be fit to serve. Smith’s team is seeking to submit the questionnaire by a previously scheduled Feb. 28 deadline but is being held up by Trump and his two co-defendants’ bid to make the questionnaire public.
“Because that thorough inquiry is aided greatly by ensuring that prospective jurors do not
access the substance of voir dire until the time it is conducted, particularly in cases involving pretrial publicity like this … courts often seal proposed and final questionnaires until after jury selection,” Smith’s team added.
The special counsel’s office made its filing on Wednesday, just one day after Cannon denied efforts by Trump co-defendants Walt Nauta and Carlos de Oliveira to have their attorneys review a portion of classified and unclassified records submitted in a sealed filing by prosecutors in December. The two are accused of helping Trump conceal documents he kept in Florida after his presidency ended.
Discovery materials in the classified documents case against Trump have complicated the case as prosecutors and the defense navigate the Classified Information Procedures Act that protects them.
Cannon on Wednesday also denied Trump’s bid to have his attorneys view materials related to Smith’s early December exhibit, but she left open the option for additional litigation over sensitive materials if needed in the future.
“Should an additional round of CIPA § 4 litigation become necessary in this case, and assuming the Special Counsel moves to proceed ex parte, Defendants may file renewed requests for access,” Cannon wrote in a nine-page order.
Notably, Cannon devoted eight of her ruling’s nine pages to why she thinks Trump’s attorneys, who obtained security clearances, have made a “compelling” showing to see the materials in Smith’s exhibit. However, she noted that the U.S. Court of Appeals for the 11th Circuit holds precedent that bars her from granting Trump’s motion.
“The Court cannot speak with such confidence in this first-ever criminal prosecution of a former United States President — once the country’s chief classification authority over many of the documents the Special Counsel now seeks to withhold from him (and his cleared counsel) — in a case without charges of transmission or delivery of national defense information,” Cannon wrote.
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The activity on the classified documents case docket on Wednesday comes just before a Friday hearing at the Miami federal court building, where Cannon is expected to weigh additional arguments on scheduling and other matters as the case progresses.
A trial is currently scheduled for May 20, though additional delays could arise as Trump continues his efforts to get the case dismissed through several recent motions he has filed, including an argument that Smith was improperly appointed as special counsel, that Trump maintains presidential immunity, an argument that he is being selectively prosecuted, and additional complaints.
