Judge Cannon Criticizes Special Counsel Jack Smith’s Mar-a-Lago Report on Trump, Cites Court Order Breach

On Monday, U.S. District Judge Aileen Cannon issued a permanent injunction preventing U.S. Attorney General Pam Bondi and her successors from distributing special counsel Jack Smith’s report on the Mar-a-Lago classified documents investigation beyond the Department of Justice. However, she stopped short of ordering the destruction of Volume II of the report.

This decision came just before the expiration of Cannon’s injunction and ahead of any action from the 11th U.S. Circuit Court of Appeals regarding an emergency request to pause the proceedings. The ruling is a continuation of Cannon’s July 2024 dismissal of the Espionage Act case against former President Donald Trump. In that dismissal, Cannon argued that Smith’s appointment as special counsel was unlawful, rendering all subsequent actions, including the creation of the report, invalid. As a judge appointed by Trump, Cannon concluded that Smith had no legitimate authority to compile the report using discovery materials.

For Trump and his former co-defendants, valet Waltine Nauta and Mar-a-Lago property manager Carlos de Oliveira, this decision is likely welcome news. Trump’s lawyer, Kendra Wharton, claimed that Smith’s report was “unlawfully prepared” due to Cannon’s ruling, labeling Volume II as “ultra vires work product,” meaning it was beyond Smith’s official capacity to produce.

Trump’s legal team argued that the appropriate remedy should be to invalidate all of Smith’s actions deemed “ultra vires,” including the preparation and submission of Volume II. They asserted that such a measure would safeguard the constitutional role of the judiciary.

Judge Cannon appeared to resonate with these arguments, criticizing Smith for at least violating the intent of her dismissal order by proceeding with the creation of a final report.

“Defendants moved for emergency relief to bar the impending release of Volume II, all the while Special Counsel Smith and his team separated from the Department of Justice; ‘referred’ the criminal case to the United States Attorney’s Office for the Southern District of Florida; and delivered Volume II to the Attorney General in a flurry of emergency motion practice leading up to the Presidential Transition—leaving no counsel of record available with actual knowledge of the particulars of the complex factual record in this case,” Cannon recounted. “To say this chronology represents, at a minimum, a concerning breach of the spirit of the Dismissal Order is an understatement, if not an outright violation of it. The Dismissal Order focused on the charging document on which the criminal proceeding hinged—the Superseding Indictment—and dismissed it. But it went on to explain that ‘all’ of Special Counsel Smith’s actions in connection with this proceeding were ultra vires and must be set aside.

“Nevertheless,” the judge continued, “rather than seek a stay of the Order, or clarification, Special Counsel Smith and his team chose to circumvent it, for months, by taking the discovery generated in this case and compiling it in a final report for transmission to then-Attorney General Garland, to Congress, and then beyond. The Court need not countenance this brazen stratagem or effectively perpetuate the Special Counsel’s breach of this Court’s own order.”

Smith expressed in recent months that he desired to speak about Volume II during a deposition and in a public hearing before Congress, but on both occasions he noted that Cannon’s injunction was in place and he didn’t want to violate the judge’s order. To ensure his compliance, Smith said, he didn’t review Volume II before his testimony and didn’t address its findings about Trump’s allegedly willful retention of classified documents and obstruction of their return.

Now Cannon has hinted at a potential violation of her order based on the fact of the report’s existence itself. Further, the judge came up with a reason to say the report should not go public, unlike the John Durham, Robert Mueller, David Weiss, and Robert Hur reports.

“Moreover, while it is true that former special counsels have released final reports at the conclusion of their work, it appears they have done so either after electing not to bring charges at all or after adjudications of guilt by plea or trial. The Court strains to find a situation in which a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt, at least not in a situation like this one, where the defendants contested the charges from the outset and still proclaim their innocence,” she said.

While the Durham report included information about acquitted individuals, the Mueller and Hur reports were issued while Trump and Joe Biden were president and neither were charged in those investigations.

But in the interest of “basic fairness” to Trump, Nauta, and de Oliveira and to prevent a “manifest injustice,” Cannon permanently blocked the DOJ and Bondi “or her successor(s)” from “releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice” or “otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof.”

Cannon notably denied the argument embraced by Nauta and de Oliveira that Volume II should be destroyed, the fear of which animated emergency appeals by the Knight First Amendment Institute and American Oversight. Both groups maintain that the public has a right to access at least a redacted version of Volume II, arguing that the report Cannon reviewed in her chambers will shed light on the allegations and investigation of a former candidate who is currently the U.S. president.