While congressional Republicans prevent Jack Smith from testifying publicly about his work as special counsel investigating and prosecuting Donald Trump, the latest action from Trump-appointed Judge Aileen Cannon will also keep Smith’s report on the classified documents case from the public.
To recap how we got here, Cannon dismissed Trump’s documents indictment in July 2024 on the grounds that Smith had been unlawfully appointed. Smith appealed Cannon’s dismissal but withdrew that appeal after Trump won the 2024 election, citing the Justice Department’s policy against prosecuting sitting presidents.
But Trump still had two co-defendants in the appeal, which Cannon cited in blocking the release of Smith’s report on the case. “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,” she wrote in her Jan. 21 order. The DOJ under the Trump administration then dropped the appeal against the co-defendants later that month, and the appeals court granted the motion to dismiss in February.
One might have thought that the full dismissal would lead Cannon to lift her order blocking the release of Smith’s report. One would’ve been wrong.
Two outside groups, American Oversight and the Knight First Amendment Institute, moved to intervene in the case to get the report released. But Cannon was taking so long to decide their motions that an appellate panel last month chided the Trump appointee for “undue delay,” while giving her two more months to finally rule.
It’s against the press of that impending court-ordered deadline that the Florida judge’s actions came this week — again favorable to the Trump side. She denied the motions from American Oversight and the Knight First Amendment Institute to intervene to lift her January order. And she acknowledged that the complete dismissal of the documents case undercut the rationale of her January order, but she still set its expiration for two months from now – to Feb. 24 – citing Trump and his former co-defendants’ request for at least 60 days to let them “seek appropriate relief from this Court.”
What, you might wonder, could that “appropriate relief” be, if the rationale of Cannon’s January order has evaporated? One thing she noted in her latest order is that the Trump side has argued that the report shouldn’t be released because it’s the product of (what Cannon deemed) an illegally appointed special counsel and that it contains other privileged and protected information.
At any rate, as things stand now, Smith’s report will stay secret until Feb. 24. And there’s reason to think it will stay secret longer after that.
The Knight First Amendment Institute said it intends to appeal Cannon’s ruling. In response to my question of what would happen if her order takes effect Feb. 24, the institute’s senior counsel, Scott Wilkens, said DOJ “will in theory be free to release the report,” but that because the government “has already made clear that it won’t release the report voluntarily, we will file suit under FOIA [the Freedom of Information Act] to compel it to do so.” Even so, Wilkens said he thinks it’s unlikely that Cannon’s injunction blocking the report’s release will expire on Feb. 24, because, he said, “DOJ and the defendants will no doubt seek to keep the injunction in place, and Judge Cannon may well grant their request.” Cannon’s latest action comes as former CIA Director John Brennan seeks to avoid her presiding over any Trump-backed retribution against him. The New York Times reported on a letter to the Southern District of Florida’s chief judge from Brennan’s counsel, which listed “numerous past decisions by Judge Cannon that could reasonably cause the prosecutors to believe that hers would be an accommodating courtroom for an investigation and possible prosecution of President Trump’s perceived political adversaries.” Among the decisions listed in the letter is her handling of the litigation over the release of Smith’s report. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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