Source: CNN
Judge Aileen Cannon suggested Friday she was not inclined to allow the Justice Department to share special counsel Jack Smith’s report on the classified documents case with Congress – at least for now.
“At the end of the day, what’s the urgency of doing this right now?” Cannon asked Justice Department attorney Elizabeth Shapiro at a hearing in her Ft. Pierce, Florida, courtroom.
Attorney General Merrick Garland earlier this week released the part of Smith’s report focusing on January 6 and Trump’s attempt to overturn the election. The Justice Department is seeking to show the classified documents report to a handful of members of Congress, but not yet make it public.
Cannon, appointed by Trump in 2020, has had oversight over issues in Trump’s criminal case in Florida, where he was charged by the special counsel in connection with allegedly mishandling classified documents taken to his Mar-a-Lago estate. Assigned the case at random, after previously issuing rulings in Trump’s favor – later overturned by higher courts – in a civil case that stymied the investigation into the documents, Cannon drew criticism for delays in the case and then controversially dismissed the charges against Trump, saying Smith’s appointment violated the Constitution.
Smith has resigned from the department, and Garland will lose all control over what happens to the report – and the classified documents case writ large – once Trump is inaugurated Monday at noon. Friday’s hearing ended without Cannon issuing a ruling.
At the heart of the dispute before Cannon is the transparency that Congress is entitled to in a special counsel investigation, especially after Trump made clear during the 2024 campaign that he would not respect the typical independence a special counsel probe would have from an administration.
Friday, Cannon peppered Shapiro with questions why the department was offering the report to Congress now, when there is a possibility that the prosecution against Trump’s former codefendants could be revived. Cannon dismissed the case against them last summer but that ruling is on appeal.
Trump was dropped as a defendant in the appeal after his reelection, but Cannon on Friday asked the Justice Department whether it’s possible Trump could see the charges brought again down the road, since he had been dismissed “without prejudice” – meaning the possibility of being prosecuted again hadn’t fully been foreclosed.
Shapiro said she did not have an answer to that question.
The Justice Department says that if allowed by the court, it plans to show the report to the GOP and Democratic leaders of House and Senate Judiciary committees – and they would only be allowed to view it behind closed doors on the condition that they would not disseminate information from it.
Still, the judge demanded examples of when the department has disclosed non-public information to Congress from its investigatory work when the matters weren’t fully closed.
Cannon noted that in past examples of the department releasing a special counsel’s report, those reports had been disclosed after a “moment of finality” when there was “no doubt.”
Cannon is one of the people outside of DOJ, including Trump’s attorneys, who has seen the report. Earlier this week, the department provided Cannon with an unredacted version and a version with the redactions they had planned for the limited review by lawmakers.
The specter hanging over the courtroom that Trump’s Justice Department – which will likely be led by some of the same defense attorneys who had sought court orders blocking the release of both volumes of Smith’s report – could bury the report once he is inaugurated was not explicitly confronted.
That possibility went unaddressed even though Trump himself is seeking to formally intervene in the dispute so he can bring his own arguments against the limited disclosure. Faced with Cannon’s questions for why department was pushing to share the report with Congress now, Shapiro instead referenced Garland’s general commitments to transparency, and his desire to see things through with a special counsel that he appointed.
Trump attorney John Lauro, meanwhile, claimed the urgency was motivated by a wish by the Biden administration to “get our last licks in here before we leave.”
Much of Cannon’s questioning for the defense counsel focused on the “conceptual framework” she would be using to do the legal analysis of their request. She also floated the possibility that she would delay the limited disclosure of Congress for additional proceedings on what would need to be redacted under federal law protecting grand jury proceedings.
Trump and his former co-defendants have been able to upend Garland’s plans for rolling out the two-volume report. Though the president-elect was unable to block the release of the report’s volume on the 2020 election subversion investigation, Cannon has already placed a hold on the classified documents report being disseminated outside of the department that remains in place.
Cannon dismissed the case last summer, with her concluding that Smith had been unconstitutionally appointed. But with the appeal of the ruling ongoing, Trump’s former co-defendant say that even disclosing the report to the members of Congress would be prejudicial to them if the case were to go to trial. Cannon on Friday was focused on the lack of mechanism the court has to enforce the lawmakers to keep quiet about what they learn from the report.
If a member of Congress went to the House floor to describe what they had read, that conduct would be protected by the Constitution’s Speech or Debate Clause.
This story has been updated with additional developments.