Left: Then-special counsel Jack Smith speaks to reporters about the indictment of then-former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/J. Scott Applewhite, File). Center: U.S. District Judge Aileen Cannon of the Southern District of Florida (U.S. District Court for the Southern District of Florida). Right: Donald Trump speaks with reporters before leaving Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
With the prospect of oral arguments before the midterm elections now gone, the organizations seeking to overturn Judge Aileen Cannon’s decision blocking the release of former special counsel Jack Smith’s report on President Donald Trump and the Mar-a-Lago investigation are urging an appeals court not to delay the case until 2027.
The 11th U.S. Circuit Court of Appeals had initially scheduled arguments for Nov. 2. Attorneys for Trump and his former co-defendants, Walt Nauta and Carlos De Oliveira, then argued they did not have enough time to prepare and that the date conflicted with other commitments.
By mid-October, the court granted Trump’s request to move the hearing, saying it would “schedule oral argument at a time convenient to the panel and the attorneys.”
American Oversight and the Knight First Amendment Institute now jointly argue that the court should set “oral argument at the first available sitting,” because the public’s access rights to Volume II “at stake depend on timely adjudication[.]”
“President Trump and Mr. De Oliveira oppose the motion, but only to the extent it seeks to schedule oral argument for a sitting before January 2027, or on a date that conflicts with counsel’s existing commitments,” the organizations wrote. They asked the court to reject any “further delays.”
The filing said the need for a prompt ruling is even greater because of Volume II’s “extraordinary public significance.” The report addresses allegations of serious criminal conduct involving the nation’s highest elected official, the groups said, while arguing that “each ground” cited by the former classified-documents defendants in seeking a continuance “has fallen away or will soon expire.”
“The personal travel of Mr. De Oliveira’s counsel ends November 2. Counsel for President Trump sought time to confer with her client after the November 3 elections, which will have taken place well before any available sitting,” the filing stated. “And the ground first raised in reply—the need to respond to a motion to intervene filed in the district court by current and former FBI agents—no longer stands in the way[.]”
The former defendants had pointed to a pending deadline in Cannon’s court, where fired FBI agents involved in the Mar-a-Lago investigation asked the judge to clarify her injunction. The agents said they needed assurance that they could testify in the Justice Department’s “grand conspiracy” investigation without facing repercussions.
Smith previously indicated that he wanted to discuss Volume II during a deposition and at an earlier congressional hearing. However, he refrained from doing so while Cannon’s injunction remained in effect, saying he believed the DOJ “will do everything in their power” to indict him “because they’ve been ordered to by the president.”
Cannon, who was appointed by Trump, dismissed the then-candidate’s indictment and invalidated the special counsel’s work after ruling that Smith had been unlawfully appointed. She permanently barred the release of Volume II but did not order that the report be destroyed.
Under Cannon’s order, the DOJ and then-Attorney General Pam Bondi, “or her successor(s),” are prohibited from “releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice.” The order also bars the department 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 has not yet ruled on the FBI agents’ request, though American Oversight and the Knight Institute noted that briefing in the matter “is now complete.”
The organizations contend that Cannon’s “legally erroneous” rejection of the public’s right to access the report requires the 11th Circuit to vacate the injunction and “order Volume II placed on the public docket.”
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