In a win for transparency, Volume 1 of special counsel Jack Smith’s investigative report, documenting Donald Trump’s alleged 2020 election subversion crimes, was released Tuesday, reminding readers of what the report calls Trump’s “unprecedented criminal effort to overturn the legitimate results of the election in order to retain power.”
Now the less good news: Judge Aileen Cannon, who had temporarily blocked the release of Vol. 1 of Smith’s report, has made it less likely that Vol. 2 will be released to the leadership of the House and Senate judiciary committees by scheduling a hearing on the matter for Friday.
Judge Aileen Cannon has made it less likely that Vol. 2 will be released by scheduling a hearing on the matter for Friday.
Given Trump’s Monday inauguration, the stakes in this battle for the limited release of Vol. 2 of the special counsel’s report, which focuses on Trump’s alleged classified documents crimes, are high.
In a dubious legal ruling in July in which she ruled that Smith had been unlawfully appointed, Cannon dismissed the classified documents case against Trump and alleged co-conspirators, Waltine Nauta and Carlos De Oliveira. The 11th Circuit U.S. Court of Appeals has not yet ruled on Smith’s appeal. Because Trump won in November, and because the Department of Justice’s Office of Legal Counsel is of the opinion that a sitting president cannot be prosecuted while in office, Smith dismissed Trump’s federal criminal cases, such that the president-elect is not part of the present appeal.
Importantly, when transmitting his report to Attorney General Merrick Garland, Smith recommended that Vol. 2 not be disclosed publicly, given that the case against Nauta and De Oliveira remains active and, in the event Cannon’s dismissal is reversed on appeal, they should be expected to face trial.
Garland agreed with Smith’s recommendation against publicly releasing Vol. 2 but announced his intent to make it available for “in camera review by the Chairmen and Ranking Members of the House and Senate Judicial Committees.”
Prosecutors note that such limited, nonpublic disclosures to members of Congress are routine and necessary to ensure that “Congress can fulfill its own constitutional oversight functions.” To minimize the risk of public release and potential harm to Nauta and De Oliveira, the “Chair and Ranking Members of the House and Senate Judiciary Committees would be required to agree to specified conditions of confidentiality,” including an agreement “not to share information in Volume Two publicly.”
This seemingly esoteric court battle is worthy of our attention for two reasons. If there is no disclosure of Vol. 2 to members of Congress, what might a Trump-led DOJ do to the evidence? Might it be destroyed in an attempt to make sure Trump is never held to account for the classified documents crimes? Recall that the documents case was dismissed without prejudice, which means the case could theoretically be refiled once Trump leaves office.
Second — and this is arguably the larger and more enduring problem — the Justice Department is litigating this issue as if Cannon has authority to preside over these matters when she doesn’t. Cannon never had jurisdiction over Vol. 1 (the election interference case), as that case was presided over by Judge Tanya Chutkan in the District of Columbia. And she lost jurisdiction over Vol. 2 when she dismissed the classified documents case. Because it’s on appeal, only the 11th Circuit has jurisdiction to take any action.
The Justice Department is litigating this issue as if Cannon has authority to preside over these matters when she doesn’t.
As my friend Joyce Vance, the pre-eminent appellate practitioner, noted, “The strangest thing about this entire proceeding is that Judge Cannon continues to issue orders when there is no case pending in front of her. That’s not how a court’s jurisdiction is supposed to work.”
In my 30 years as a federal prosecutor, I encountered judicial overreach like Cannon’s a handful of times. I always fought against it, believing prosecutors had a responsibility to oppose such overreach. We had a term for the decision to ignore judicial overreach: feeding the monster. I would make my arguments to my DOJ supervisors in favor of filing a motion opposing such judicial overreach, believing it was important to fight such battles rather than just doing the expedient thing and trying to win on the merits. Some prosecutors, though, concerned about antagonizing the judge presiding in the case, declined to fight. My personal experience was that more often than not, the DOJ hierarchy refused to wage such righteous battles with judges. This seems to be the decision prosecutors in the classified documents case have made. Instead of taking up the jurisdictional battle in earnest, they’re trying to win on the merits of the substantive litigation. The approach has echoes of Smith’s decision not to try to have Cannon removed from presiding over Trump’s case after the 11th Circuit twice ruled Cannon abused her judicial discretion to the extreme benefit of Trump. One last concern: Cannon set a hearing on the issue of the limited release of Vol. 2 for Friday. Do we really think she’ll issue her ruling before Monday and give the DOJ time to deliver the documents to congressional leadership? Given Cannon’s track record in Trump-related litigation, it seems far more likely she rules after Jan. 20, when Trump’s administration can take control of not only this issue but all of the incriminating evidence uncovered by the Smith investigation.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
