Left: Then-special counsel Jack Smith speaks to the media about an indictment of then-former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo/J. Scott Applewhite, File). Center: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
A federal court of appeals is being asked to stop a district judge from taking any further action regarding the second volume of former special counsel Jack Smith“s final report on his investigations into President Donald Trump.
Late last year, U.S. District Judge Aileen Cannon, who was appointed by Trump during his first term, issued two orders related to the long-delayed but still-lingering dispute over the second volume.
In the first order, Cannon flatly denied efforts to intervene lodged by the Knight First Amendment Institute at Columbia University and transparency-focused nonprofit American Oversight. In her second order, however, Cannon acknowledged “any former or current party to this action” may move “for leave to intervene, if warranted, and/or from timely seeking appropriate relief before that deadline.”
Over the past few weeks, the other parties to the dispute have weighed in at the district court level. An attorney for Trump commended the court for keeping the second volume under wraps – saying it should stay that way. The U.S. Department of Justice echoed that approach, saying the full report belongs in the “dustbin of history.” And, as for Trump’s onetime co-defendants — Waltine Nauta, Trump’s valet, and Carlos De Oliveira, the Mar-a-Lago property manager — they believe “all copies” of the second volume should simply be destroyed.
Now, still on the outside looking in, the groups have heard enough.
In a 30-page petition for a writ of mandamus filed Friday, the Knight Institute and American Oversight are asking the U.S. Court of Appeals for the 11th Circuit to stay proceedings at the district court pending the resolution of their two separate appeals filed last year.
“Mandamus relief is urgently needed in aid of this Court’s appellate jurisdiction and to ensure that Petitioners’ statutory, common law, and First Amendment rights of access to Volume II are not irretrievably lost,” the petition reads. “Needless to say, if the district court orders the destruction of the document at issue in Petitioners’ appeals, this Court’s jurisdiction will effectively be thwarted and Petitioners’ constitutional and statutory rights vitiated. Petitioners—as nonparties who have been denied intervention—will have no ability to appeal the district court’s order to prevent it being carried out.”
Issuing a writ of mandamus – a demand issued by a court for another court, or for a government agency, to do something specific – is rare. The petitioners say the circumstances at this point in the shadowy life of Smith’s second volume justify such an extraordinary remedy.
For one, the groups say, they simply have no other options due to how Cannon stacked the docket in favor of maintaining secrecy.
“The parties’ unopposed, expedited motions currently pending before the district court seek relief that would, if granted, entirely foreclose Petitioners’ statutory, common law, and First Amendment rights of access to Volume II,” the petition continues.
The filing goes on like this, at length (emphasis in original):
A district court order directing the destruction of all copies of Volume II would result in the irretrievable loss of those rights. A permanent injunction barring Volume II’s release would also seriously damage Petitioners’ rights of access, because FOIA, the common law, and the First Amendment all guarantee a right of timely access to records that fall within their scope. The First Amendment, for example, guarantees a right of contemporaneous access to judicial documents, because “the public benefits attendant with open proceedings are compromised by delayed disclosure.”
The groups also say they have civil procedure on their side.
“Petitioners have a clear and indisputable right to a stay of district court proceedings because their notices of appeal divested the district court of jurisdiction over the issue remaining in this closed criminal case—public access to Volume II of the Special Counsel’s report,” the petition goes on. “Given the transfer of jurisdiction to this Court, the district court’s adjudication of the parties’ motions seeking permanent injunctive relief against Volume II’s release would constitute an ‘abuse of judicial power.'”
The mandamus request argues Cannon no longer has authority over the specific question of “public access to Volume II” because their “notices of appeal completely divested the district court of jurisdiction.”
In other words, the groups say the access question is the core issue at stake now, rather than just an ancillary issue, and the idea of litigating the core issue in two different courts – at the district and appellate level simultaneously – makes no sense.
Again, the filing, at length (emphasis in original):
Indeed, the pending motions in the district court are inextricable from the issues on appeal. On appeal, Petitioners seek access to Volume II and to a rescission of the injunction against its release. In the pending motions in the district 18 court, Defendants seek destruction of the report or, at the very least, a permanent injunction against its release. It is difficult to imagine a more direct conflict between parallel proceedings in the district court and on appeal.
“The Petition raises ‘special circumstances’ that further justify issuance of the writ,” the petition continues. “The report’s release would shed light on the scope and integrity of the Special Counsel’s investigation, which is a matter of intense public and congressional interest.”
The groups go on to note congressional investigators are still interested in the underlying Mar-a-Lago documents case but that Smith himself has been hamstrung by the report remaining under seal.
“The disclosure of the report would also inform the public about the Justice Department’s understanding of the Espionage Act, a statute with broad implications for free speech and press freedom,” the petition argues.
Finally, the groups say there are greater principles at play that support the appellate court’s immediate intervention in the case.
“The Supreme Court has emphasized that the First Amendment was meant to protect the right of the public to freely examine ‘public characters and measures,'” the petition concludes. “The district court’s adjudication of Defendants’ motions seeking the permanent suppression and destruction of Volume II of the Special Counsel’s report compromises the interests that FOIA and the First Amendment were intended to protect.”
