Judge Aileen Cannon this week decided to block the release of special counsel Jack Smith’s reports on his investigation into Donald Trump, drawing praise from the president-elect’s allies and scorn from legal experts who say that the Trump appointee lacks jurisdiction over the matter.
Although Smith dropped the classified documents case against Trump after he won re-election, the case has continued against Trump’s co-defendants, Walt Nauta and Carlos de Oliveira. On Monday, attorneys for those remaining defendants asked Cannon to block the release of Smith’s final report on the matter, arguing that Smith was unconstitutionally appointed.
Cannon soon granted the defendants’ request and blocked the Justice Department from “releasing, sharing, or transmitting the Final Report or any drafts of such Report outside the Department of Justice” until three days after the Eleventh Circuit weighs in on a separate request from Nauta and De Oliveira to block the release of the report.
According to Nauta and De Oliveira releasing the report, which likely contains information about their alleged efforts to help Trump and obstruct justice, could influence their trial.
In response to Cannon’s order, the Justice Department on Wednesday said that it plans to release its report on Trump in multiple volumes and that it would only make the sections concerning Trump’s hoarding of classified documents at his estate at Mar-a-Lago available to the chairmen and ranking members of the House and Senate Judiciary Committees, at least as long as the trial in Florida is ongoing. The ranking member of the House Oversight Committee, Rep. Gerald Connolly, D-Va., has already made a request to review both volumes of the report.
It is not clear from the filing when the Justice Department plans on releasing materials related to Trump’s efforts to overturn the result of the 2020 election or the attack on the Capitol on January 6 but they have said they will set a timeline after the 11th Circuit rules on Cannon’s order. Normally, a special counsel submits a final report to the attorney general when they are finished with their investigation and then the attorney general decides whether or not to release it.
Cannon’s decision to block the release of Jack Smith’s report has raised eyebrows among legal experts. Former federal prosecutor Sarah Krissoff told Salon that the matter is beyond her jurisdiction.
“Judge Cannon does not have the jurisdiction to unilaterally block Jack Smith’s report. She’s already dismissed the case and the propriety of that dismissal, at least to the remaining two defendants, is on appeal. The 11th Circuit is going to need to weigh in,” Krissoff said.
Krissoff noted that the Justice Department has already told the 11th Circuit that it plans to only release information related to election interference, which she said was “appropriate” given the ongoing case against Nauta and De Oliveira.
“I suspect the 11th Circuit is going to say that they have no jurisdiction over what the DOJ does with the portions of the report that relate to the election interference case,” Krissoff said.
Bennet Gerhsam, a former New York prosecutor and a law professor at Pace University, characterized Cannon as “Trump’s protector-in-chief,” and agreed with Krissoff that Cannon lacked the authority to block the special counsel’s report.
“Her conduct throughout the litigation involving the criminal charges against Trump — for secreting highly sensitive and classified documents in bathrooms and ballrooms at Mar-a-Lago — is replete with examples of her astonishing bias: allowing unconscionable delays sought by Trump’s lawyers; chastising the prosecutors for baseless reasons; and finally dismissing the charges against Trump,” Gershman said. “Cannon has demonstrated beyond any doubt that she should have been removed from the case long ago for manifest bias.”
Gershman added that “virtually every fact contained in the report is likely already in the public domain” and said that the “idea that releasing the report will prejudice codefendants is hokum.” Gershamn also said that “it is clear to anybody watching Cannon’s shenanigans that Trump is trying to run out the clock with the assistance of a very friendly umpire.”
David Schoen, who represented Trump during the second impeachment trial, disagrees. He told Salon that Cannon “did exactly the right thing” given the pending appeal on the issue at the 11th Circuit and the need to protect “the integrity of a pending criminal case.” He also said that, if the Supreme Court decides that Smith’s appointment to investigate Trump was unconstitutional, “the office could be a nullity” and the normal regulations on a special counsel’s report may not apply.
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