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Left: FILE – Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo/J. Scott Applewhite, File). Center: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
The Department of Justice is asking a federal appeals court to reverse U.S. District Judge Aileen Cannon’s order temporarily enjoining Attorney General Merrick Garland from releasing special counsel Jack Smith’s final report on his investigations into Donald Trump, arguing that the judge had “no basis at all” for halting the public release of volume one of the report.
The DOJ planned to release the first volume to Congress and the public while only releasing volume two for review in chambers “by the Chairmen and Ranking Members of the House and Senate Judiciary Committees upon their request and agreement not to release any information from Volume Two publicly.”
The DOJ’s notice of appeal, filed just after midnight on Friday, came after the 11th U.S. Circuit Court of Appeals denied a request from Walt Nauta and Carlos De Oliveira, Trump’s codefendants in the case, to prevent the release of Smith’s report. While the appeals court rejected Nauta and De Oliveira’s request, it left in place Cannon’s order, which she said would remain in effect for additional three days following resolution by the appellate court.
“To the extent that Appellant [DOJ] seeks relief from [Cannon’s] January 7, 2025, order temporarily enjoining Appellant, Appellant may file a notice of appeal from that order,” the circuit court wrote in Thursday’s order.
The DOJ did just that late Thursday evening, asking the court to vacate Cannon’s ruling enjoining the release of Smith’s report, reiterating its argument that Cannon does not have the authority to control the special counsel’s findings.
Smith’s final report comprises two volumes. The first relates to his investigation and prosecution of Trump in connection with his alleged efforts to subvert the 2020 presidential election. The second deals with Trump, as well as Nauta and De Oliveira, allegedly mishandling classified documents recovered from the president-elect’s home in Mar-a-Lago.
Cannon, a Trump appointee who has been repeatedly praised by the president-elect, controversially dismissed the classified documents case, reasoning that Smith’s appointment as special counsel was unlawful. While dropping the cases against Trump due to long-standing policy against prosecuting a sitting president, the DOJ has appealed Cannon’s ruling regarding the remaining cases against his codefendants.
In the notice of appeal, the DOJ argued that Cannon had no authority over the first volume of Smith’s report, which dealt with the 2020 election and the Jan. 6, attack on the Capitol.
“[T]he district court had no proper basis for preventing the Attorney General from making Volume Two available for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees, pursuant to restrictions to protect confidentiality and subject to redactions to protect information protected by Rule 6(e) and court orders,” the DOJ wrote. “And the district court had no basis at all for enjoining the public release of Volume One, which relates to a prosecution that does not concern defendants and which, in any event, defendants have identified no plausible merits theory for enjoining.”
The department also emphasized the “unusual exigencies” of the case, given that Trump will be inaugurated for his second term in just 10 days, effectively taking control of the DOJ.
Trump’s codefendants may still take their appeal to the U.S. Supreme Court, meaning the short-term fate of Smith’s report and its possible public release remains uncertain.
