Judge throws out NYT suit to obtain full Jack Smith report
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Left: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida); Right: special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)

Former special counsel Jack Smith was eager to discuss the details of his confidential report concerning the Mar-a-Lago classified documents investigation related to then-presidential candidate Donald Trump. However, U.S. District Judge Aileen Cannon imposed restrictions that significantly limited Smith’s ability to even review his own report before providing testimony behind closed doors. This information comes from a newly released 250-page transcript from the House Judiciary Committee, which you can view here.

Unlike his predecessors, such as Robert Mueller, John Durham, and Robert Hur, Smith has not publicly discussed his final report’s findings, despite his willingness to do so. Instead, House Judiciary Committee Chairman Jim Jordan, a Republican from Ohio, arranged for Smith to be questioned about his investigations into Trump on December 17, away from public scrutiny. The details of this session were later made available through a transcript released on New Year’s Eve.

Smith, maintaining that his actions were nonpartisan, defended the work of his team and the FBI in the investigations concerning Trump. These investigations included the events of January 6, the handling of classified documents, and alleged obstruction following Trump’s presidency. Smith refrained from diving into specifics about the Mar-a-Lago situation because the Trump-appointed judge who previously dismissed the case and nullified Smith’s role as special counsel continues to pose challenges for him today.

At the beginning of the deposition, House Judiciary Democrats highlighted that Cannon’s injunction—active since January and preventing the disclosure of Volume II of Smith’s report even after the Department of Justice concluded cases against former Trump associates Waltine Nauta and Carlos de Oliveira—essentially silenced Smith, preventing him from informing the committee about his investigation into Trump’s alleged criminal activities.

The transcript claims, “These crimes include the theft and deceit concerning classified documents stored in the ballrooms and bathrooms of Trump’s Mar-a-Lago property. There is no justification for keeping Volume Two confidential, except perhaps for Trump’s discontent with its contents.” The Department of Justice has also taken the position that Smith is restricted from revealing any non-public information contained in Volume Two.

Democratic members of the committee persistently attempted to phrase questions in indirect ways to prompt Smith to discuss the topic, but he remained tight-lipped. His reluctance may stem from a clear understanding that, “this president will seek retribution against me if he can.”

Not giving an inch, Smith emphasized he did not want to say anything that would violate Cannon’s order — something that could be used against him.

“Well, there is an order of Judge Cannon, an injunction regarding Volume Two. I want to make very clear that I do not want to do anything to violate that injunction or that order,” Smith said, revealing that the DOJ provided him a computer with files from his probe to review before his deposition and that he believed Volume II was among those materials.

But Smith said he didn’t access the Volume II file, believing that looking at his own report would be problematic.

“And so, given that I have not seen — looked at Volume Two since I submitted it to the Attorney General almost a year ago, I do not have an exact recollection of what is in there and not. And so, unless something is in a public filing or — and people can point me to a public filing — I think the category that was mentioned in the letter that we got this morning of publicly — I can’t remember the terminology, but properly publicly released information, I do not want to — I want to be clear I do not want to violate that order, and I don’t want to do anything that can even be remotely construed as violating that order,” Smith said.

A Democratic lawyer followed up with a question.

“Wait. So — I’m sorry. But DOJ did not let you review Volume Two of your report?” the person asked.

“It may well have been there, but I chose not to review it, because I didn’t want any implication whatsoever that I was somehow violating the order by looking at it, not being a member of the Department now,” Smith said, according to the transcript.

Later on in the deposition, Smith reiterated that Cannon’s order was the “reason” for his silence about the details of his report.

Asked if there was “any other reason right now,” given that Nauta and Oliveira’s cases have been dismissed, why Volume II should not go public, Smith answered, “Judge Cannon’s order is the reason.”

Ultimately, Smith noted, even if the injunction were to be lifted, whether or how much of the report goes public is U.S. Attorney General Pam Bondi’s decision.

Since February, nonprofit groups the Knight First Amendment Institute and American Oversight tried to convince Cannon to lift the injunction in the public interest, filing motions to intervene in the shuttered criminal case against Trump. Cannon denied the motions more than half a year later — only after the groups appealed to the 11th Circuit. The appellate court agreed the judge had engaged in “undue delay” and put Cannon on a 60-day deadline to rule.

When Cannon did finally rule on Dec. 22, denying the proposed interventions to lift the injunction, Smith’s deposition had already taken place.

Unsurprisingly, both nonprofit groups responded to Cannon’s denial by filing notices of appeal at the 11th Circuit.

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