Judge Aileen Cannon for the Southern District of Florida stepped back on Monday from an earlier ruling that purported to block part of ex-Special Counsel Jack Smith’s report from being released, while reasserting her claim to have blocked the rest of it.
In the Monday ruling, she said that the remaining special counsel prosecutors and defense attorneys in the Mar-a-Lago case will have to appear this Friday to discuss Volume 2 and debate whether the DOJ can release it to some members of Congress. That section of the report, prosecutors have said, covers the Mar-a-Lago records case. Volume 1 deals with the investigation into Trump’s attempt to hold onto power after losing the election.
Cannon’s assertion that she has grounds to rule here is already cocooned in a nesting doll of questions about her authority. Part of the order purports to make Volume 1 of the report available. But Cannon never had any form of authority over the Jan. 6 investigation. In the Mar-a-Lago case, she ceded authority when she dismissed the case after ruling last year that Smith was unconstitutionally appointed. The case then went to the 11th Circuit Court of Appeals.
Attorney General Merrick Garland, however, signaled last week in a letter to Congress that the DOJ would abide by Cannon’s order blocking release of the report. In the new, Monday order, Cannon said that while she was purporting to allow Volume 1 to be released, the block on Volume 2 would remain in place.
Cannon specified in the order that she would allow her order blocking the public release of Volume 1 to expire at midnight Eastern Time on Jan. 14. That timeframe gives Trump’s two co-defendants in the case, Walt Nauta and Carlos De Oliveira, several hours to make a last-ditch appeal to the Supreme Court for an injunction blocking release of the report. With one week left until Trump takes office, even an extremely modest delay could effectively block the report from ever reaching public view.
Cannon, in her order, went out of her way to signal distrust of the DOJ. She only purported to allow release of Volume 1 after making a show of accepting prosecutors’ statement that the section of the report does not reference information contained in the second volume. “Counsel are reminded of their obligation of full candor to this Court and their duty as officers of the Court to ensure complete accuracy and completeness in their representations,” Cannon wrote in one footnote.
For Volume 2, which deals with issues for which Nauta and De Oliveira remain under indictment, Garland has said that the DOJ only plans to transmit the report to the heads of a few congressional committees.
Cannon asserted authority throughout the order to block the release of the report, saying at one point that she was not “willing” to make the “gamble” of allowing the DOJ to send Volume 2 “on the basis of generalized interest by members of Congress, at least not without full briefing and a hearing on the subject.”
The DOJ said in a filing over the weekend that Smith had formally left the Justice Department on Friday. It’s been fighting for public release of Volume 1 and limited release of Volume 2 for the past week, trying to beat a clock that will run out once Trump takes office on Jan. 20. The 11th Circuit ruled on Thursday that the report could be released, but has so far declined to rule on whether to overturn the initial injunction that Cannon put into place.
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