Gone but Not Forgotten: Judge Cannon Issues Another Smackdown of Jack Smith and the Biden DOJ

Despite the dismissal of the classified documents case against President Donald Trump and his co-defendants, Walt Nauta and Carlos DeOiveira, in July on grounds that Special Counsel Jack Smith was appointed (and funds for his work were appropriated) in violation of the Constitution, and the subsequent dismissal of the case altogether by the Biden Justice Department as to Trump, the case remains pending on appeal as to Nauta and DeOliveira. And in the waning days of the Biden administration, there was a mad scramble over whether or not Smith’s “Final Report” could (and should) be released.

We’ve covered the back and forth on these legal battles fairly closely, but in a nutshell, Volume 1 of the report ultimately was released, with a hearing on Volume 2 being held before Judge Aileen Cannon in the Southern District of Florida on Friday.

Cannon has now ruled as to Volume 2, granting the Defendants’ emergency motion to preclude its release and denying Trump’s motion to intervene (but allowing him to participate as an amicus curiae). In so doing, she lays the smackdown on Biden’s DOJ and the arguments they presented to the court while urging the release of Volume 2 to certain members of Congress (including Jamie Raskin (D-MD)). The full order may be viewed below, but I’m excerpting the Discussion section of her ruling here (in all its glory, with my emphasis added):

Never before has the Department of Justice, prior to the conclusion of criminal proceedings against a defendant—and absent a litigation-specific reason as appropriate in the case itself—sought to disclose outside the Department a report prepared by a Special Counsel containing substantive and voluminous case information. Until now. According to the Department, this camera disclosure to four members of Congress is necessary right now—before the conclusion of criminal proceedings—because Attorney General Garland has “limited time” left in his tenure as the head of the Department and wishes “to comply with the historical practice of all Special Counsel,” and also because there is “legislative interest in information about Special Counsel investigations, in order to consider possible legislative reforms regarding the use of special counsels” [ECF No. 703 p. 3 n.2].11 These statements do not reflect well on the Department. There is no “historical practice” of providing Special Counsel reports to Congress, even on a limited basis, pending conclusion of criminal proceedings. In fact, there is not one instance of this happening now [see Tr. 21, 26]. During argument before this Court, counsel misleadingly referenced Congressional testimony by Special Counsel Weiss in 2023 as a purported example of such “historical practice” [Tr. 26]. But Special Counsel Weiss—after opposition by the Department—ultimately agreed to testify on limited matters, repeatedly refusing to answer questions regarding ongoing litigation in order to prevent prejudice to “the rights of defendants or other individuals involved in these matters.”12 13 [Tr. 40–41]. Here, there has been no subpoena from Congress to the Department for Volume II. There is no indication of pending legislative activity that could be aided by the proposed disclosure of Volume II to the specified members of Congress. There is no memorialization of any conditions of confidentiality as referenced by the Department. Indeed, there has been no record provided of an official request by members of Congress for review of Volume II in the manner proposed by the Department.14 To the contrary, some of the same members to whom the Department wishes to present Volume II have urged Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira. Supra n.10. In short, the Department offers no valid justification for the purportedly urgent desire to release to members of Congress case information in an ongoing criminal proceeding.

Meanwhile, on the other side of the balance, there are two individuals in this action, each with constitutional rights to a fair trial, who remain subject to a live criminal appeal of this Court’s Order Dismissing the Superseding Indictment. 11th Cir. Appeal No. 24-1231. The Department has not sought leave to dismiss that appeal, initiated by the Special Counsel, and there has been no indication by any government official in this case that the Department will not proceed on the Superseding Indictment should it prevail in the Eleventh Circuit or in subsequent proceedings.15 These Defendants thus retain—as all parties agree—due process rights to a fair trial that would be imperiled by public dissemination of Volume II. Yet the Department nevertheless insists upon disclosure of Volume II to members of Congress now, promising that conditions of confidentiality, “contingent on their good faith commitment,” will protect against the potential for prejudice [ECF No. 703 p.5]. And if Volume II gets released in whole or in part to the public in contravention of those promises, the Department assures, then Defendants need not worry because this Court can “cure” any damage caused by crafting jury instructions in the future and/or dismissing the charges [ECF No. 703 pp. 5–6]. These assertions flounder on multiple levels and do nothing to detract from the obvious. Given the very strong public interest in this criminal proceeding and the absence of any enforceable limits on the proposed disclosure, there is certainly a reasonable likelihood that review by members of Congress as proposed will result in public dissemination of all or part of Volume II. See S.D. Fla. L.R. 77.2(a). That reasonable likelihood risks substantial prejudice to the due process rights of Defendants, who remain subject to the protective order in this case [ECF No. 27]. This Court lacks any means to enforce any proffered conditions of confidentiality, to the extent they even exist in memorialized form. And most fundamentally, the Department has offered no valid reason to engage in this gamble with the Defendants’ rights. The bare wishes of one Attorney General with “limited time” in office to comply with a non-existent “historical practice” of releasing Special Counsel reports in the pendency of criminal proceedings is not a valid reason. And surely it does not override the obvious constitutional interests of Defendants in this action and this Court’s duty to protect the integrity of this proceeding. Even less clear is why the Department would defend this position notwithstanding its own Justice Manual, which expressly directs against disclosing substantive case information in a criminal case “except as appropriate in the proceeding or in an announcement after a finding of guilt.” Justice Manual§ 1-7.610; see also Model Rules of Pro. Conduct, r. 3.8 (Am. Bar Ass’n 2024) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate . . . .”).

Accordingly, under any balancing of relative harms and interests, Defendants’ Emergency Request to Preclude Dissemination of Volume II must be granted. Whether measured against the traditional factors pertinent to a civil injunction as framed incorrectly by the Department or treated properly as an exercise of supervisory control over the flow of substantive, nonpublic information to protect Defendants’ rights in a criminal case, the balancing of harms and interests yields a clear and decisive answer in the present posture. Release of Volume II to Congress under the proposed conditions—without any enforcement mechanism to prevent public dissemination, and without any valid countervailing reason justifying a break from traditional norms—presents a substantial and unacceptable risk of prejudice to Defendants.

***

Prosecutors play a special role in our criminal justice system and are entrusted and expected to do justice. Berger v. United States, 295 U.S. 78, 88 (1935); Banks v. Dretke, 540 U.S. 668, 696(2004); Robert H. Jackson, Attorney General of the United States, Speech to the U.S. Department of Justice, The Federal Prosecutor (Apr. 1, 1940), available athttps://www.jus-tice.gov/ag/speeches-attorney-general-robert-houghwout-jackson. The Department of Justice’s position on Defendants’ Emergency Motion as to Volume II has not been faithful to that obligation.

Now, of course, the DOJ could elect to appeal Judge Cannon’s order to the 11th Circuit, but there’s a slight snag: Jack Smith is gone. Merrick Garland is gone. And the DOJ is now a part of the Trump administration. In fact, one suspects that the pending appeal as to Nauta and DeOliveira may well be on the dismissal chopping block soon, too, and all of this will become moot. And all of the efforts by the Biden DOJ to smear the president they hoped would never return, as well as his associates, will be for naught.

Elections have consequences.

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