Donald Trump’s second term is starting off with an unusual legal phenomenon pending in the classified documents case. Technically, the Justice Department is still attempting to reinstate the charges that U.S. District Judge Aileen Cannon dismissed last year. At least, it’s trying to reinstate them against Trump’s former co-defendants Walt Nauta and Carlos De Oliveira, after the DOJ withdrew the bid as to Trump in light of DOJ policy against prosecuting sitting presidents. 

That is, the federal government has been pursuing an appeal that, if successful, could lead to a trial during Trump’s presidency that would center on his alleged criminality surrounding national defense information and obstructing justice. (Trump pleaded not guilty in all four of his criminal cases, with the only one of them that went to trial, in New York state court, resulting in a conviction.) 

Of course, I don’t think anyone expects the government to seriously pursue the matter for much longer. The question appears to be not if, but when and how the matter is buried. Will Trump pardon his former co-defendants? Will the DOJ withdraw the appeal after new leadership gets up and running? These are among the many legal questions prompted by the 2024 election outcome. 

Plus, however the documents case is likely quashed raises questions for another aspect of the case that also implicates the new DOJ leadership: special counsel Jack Smith’s report. Now-former Attorney General Merrick Garland publicly released the volume on the federal election interference case, but he agreed to keep the documents volume shelved so long as the prospect of a trial against Nauta and De Oliveira remained. 

So in the likely event that that prospect is eliminated — whether by pardons or DOJ withdrawing the appeal — then the reason for keeping the documents report volume secret would be eliminated, too. Of course, that doesn’t mean that Trump’s new attorney general would permit its public release, but it raises another question for how new DOJ personnel will handle the subject.

Separately from the government’s (technically still) pending appeal in the 11th U.S. Circuit Court of Appeals, there’s also the (technically still) pending litigation in front of Judge Cannon, over whether the DOJ can confidentially share the documents volume with certain members of Congress. Cannon held a hearing about it on Friday and said she didn’t see the urgency in permitting members of Congress to see the volume (something the DOJ argued wasn’t any of Cannon’s business but rather a matter between the executive and legislative branches). 

Now, it’s an open question of who, if anyone else, will see the remaining Smith volume — and when.

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