Senators Push Back Against Judge Cannon’s Handling of Jack Smith Report

Senate Judiciary Committee Democrats moved Thursday to press what they described as an urgent effort to “correct the record,” asking a federal appeals court to reject U.S. District Judge Aileen Cannon’s handling of the matter and allow the public release of Jack Smith’s report on the Mar-a-Lago classified documents prosecution involving President Donald Trump.

The senators filed as amici curiae — “friends of the court” — through Democracy Defenders Action, a group led by former Obama administration ethics official Norm Eisen. In their brief to the 11th U.S. Circuit Court of Appeals, they urged the panel to take their arguments into account as it prepares to rule following oral arguments expected in the coming months.

The appeal centers on a challenge brought by attorneys for American Oversight and the Knight First Amendment Institute at Columbia University. They are contesting Cannon’s late February order that barred the Justice Department and then-U.S. Attorney General Pam 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,” as well as from “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, who was appointed to the federal bench by Trump, dismissed the classified documents case against him in July 2024 while he was then a presidential candidate. After what she described as “careful study,” she concluded that Smith had been unlawfully appointed as special counsel.

Months later, on Jan. 21, 2025 — the day after Trump’s inauguration — Cannon issued an injunction preventing the report from being provided to Congress. She pointed to the still-pending appeals involving Trump’s former co-defendants, valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, as the basis for keeping the material under wraps.

Sens. Adam Schiff, Richard Blumenthal, Sheldon Whitehouse, Cory Booker, Chris Coons, Peter Welch, Dick Durbin, Mazie Hirono, Alex Padilla and Amy Klobuchar told the 11th Circuit that Cannon’s “wrong” order — premised in part on the idea that congressional requests for Volume II were not “official” — also ignored the “lack of adversity” between Trump the former co-defendant and Trump as the head of the executive branch in the existing dispute.

The lawmakers said that despite multiple requests, whether in a congressional hearing setting or by letter, Cannon issued the injunction. The judge interfered with Congress’ advice-and-consent role within days, rendering senators unable to fully evaluate the next FBI director, Kash Patel, the filing recounted.

“[A]ccording to public reports, federal prosecutors subpoenaed Mr. Patel to testify before a grand jury investigating President Trump’s retention of classified materials after leaving office and granted Mr. Patel immunity to facilitate his testimony in November 2022 after Mr. Patel invoked his Fifth Amendment right against self-incrimination and refused to answer questions,” said a letter from Senate Judiciary Committee Democrats to then-Acting Attorney General James McHenry on Jan. 29, 2025, explaining their interest in Volume II at the time.

The committee and the public learned nothing new.

“The Special Counsel’s findings regarding Patel’s related activities and statements remained entirely unknown to the Committee, despite the fact that Patel’s core responsibilities as FBI Director would include seeking and telling the truth, maintaining the trust of the public and of Congress, and protecting the nation’s most sensitive information,” the brief stated.

The brief asserted that the congressional interest in, at minimum, inspecting Smith’s report in a secure setting still exists, pointing to the pending nomination of Acting Attorney General Todd Blanche, one of Trump’s criminal defense lawyers in the Mar-a-Lago case.

“These public requests directly undercut the district court’s assertion that Congress had not made official requests for Volume II. But by this point, the Department of Justice had abdicated its prior role in the case and sought no relief from the district court’s January 21 order,” the brief went on, again emphasizing that Trump, Nauta, De Oliveira, and the DOJ were all on the same side.

In February, after long ignoring the attempted interventions of American Oversight and the Knight Institute in Trump’s closed criminal case, Cannon entered a permanent injunction but stopped short of ordering the destruction of Smith’s report, even as she suggested his decision to create it was a violation of the spirit — if not the letter — of her dismissal order.

The senators now say it is Cannon who “made a number of errors,” including “inappropriate” accusations that “improperly cast aspersions” on the committee’s ability to be trusted to conduct an “in camera” review of the report without leaking “all or part of Volume II.”

This “apparent mistrust of Congress” and disregard of its role “was mistaken,” the brief said.

“In short, Volume II’s subject matter—the handling of classified materials after President Trump’s departure from office, and the conduct of persons now nominated to lead the very agencies charged with protecting those materials—is precisely the type of information that Congress’s advice-and-consent and legislative and oversight functions require,” the filing concluded.

American Oversight Executive Director Chioma Chukwu said the amicus brief shows Cannon’s orders “rested on a flawed understanding of Congress’s interests and were issued after the Trump administration abandoned any meaningful defense of transparency.”

“Continued secrecy serves only one purpose: shielding President Trump and his allies from accountability,” Chukwu added.