CNN
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Judge Aileen Cannon suggested Friday that she is not inclined to allow the Justice Department to share Special Counsel Jack Smith’s report on the classified documents affair with Congress — at least for now.
“At the end of the day, what is the urgency to do this now? Cannon asked Justice Department attorney Elizabeth Shapiro during a hearing in Ft. Pierce, Florida, courtroom.
Attorney General Merrick Garland earlier this week released the portion of Smith’s report focused on Jan. 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 is not yet making it public.
Cannon, a Trump appointee in 2020, oversaw issues surrounding Trump’s criminal case in Florida, where he was indicted by the special prosecutor for alleged mishandling of classified documents brought to his Mar-a-Lago property . Assigned the case to chance, after issuing rulings in favor of Trump – later overturned by higher courts – in a civil case that blocked the investigation into the documents, Cannon drew criticism for delays in the case, then controversially dismissed the accusations against Trump, saying Smith’s nomination violated the Constitution.
Smith has resigned from the department, and Garland will lose all control over the fate of the report — and the classified documents affair more broadly — once Trump is inaugurated at noon on Monday. Friday’s hearing ended without Cannon making a ruling.
At the heart of the dispute before Cannon is the transparency Congress is entitled to in a special counsel investigation, particularly after Trump made clear during the 2024 campaign that he would not respect typical independence of an investigation by a special advocate in relation to an administration.
On Friday, Cannon peppered Shapiro with questions about why the department was offering the report to Congress now, when it’s possible the prosecution of Trump’s former co-defendants could be revived. Cannon dismissed the charges against them last summer, but that decision is under appeal.
Trump was excluded from the appeal after his re-election, but Cannon asked the Justice Department on Friday whether it was possible that Trump could see the charges refiled later, since he had been removed from office “without harm” – that is, the possibility of being prosecuted again had not been fully grasped.
Shapiro said she doesn’t have an answer to that question.
The Justice Department says that if the court allows it, it plans to show the report to the GOP and Democratic leaders of the House and Senate Judiciary Committees — and they would only be allowed to view it behind closed doors, provided they don’t broadcast it. information from it.
Still, the judge asked for examples of cases where the department disclosed nonpublic information from its investigative work to Congress when the cases were not completely closed.
Cannon noted that in past examples of departments releasing a special counsel’s report, those reports were released after a “moment of finality” where there was “no doubt.”
Cannon is among people outside the DOJ, including Trump’s lawyers, who have seen the report. Earlier this week, the department provided Cannon with an unredacted version and a version with redactions that they had planned for limited review by lawmakers.
The specter looming over the courtroom that Trump’s Justice Department — which will likely be run by some of the same defense attorneys who had sought a court order to block the release of both volumes of Smith’s report – could bury the report once it is inaugurated has not been explicitly addressed. .
This possibility has not been discussed, although Trump himself is seeking to formally intervene in the dispute so he can present his own arguments against this limited disclosure. Facing questions from Cannon about why the department was pushing to share the report with Congress now, Shapiro instead referenced Garland’s general commitments to transparency and his desire to follow through with a special counsel he appointed.
Trump’s lawyer, John Lauro, meanwhile, said the emergency was motivated by the Biden administration’s desire to “give our last lick here before we leave.”
Many of Cannon’s questions to defense counsel focused on the “conceptual framework” she would use to conduct the legal analysis of their claim. She also raised the possibility of delaying Congress’s limited disclosure for additional proceedings on what should be redacted under the federal law protecting grand jury proceedings.
Trump and his former co-defendants managed to upend Garland’s plans to release the report in two volumes. Although the president-elect could not block the release of the volume of the report on the investigation into the subversion of the 2020 elections, Cannon has already suspended the release of the report on classified documents outside the department and remains in place.
Cannon dismissed the case last summer, concluding that Smith was unconstitutionally appointed. But while the appeal is pending, Trump’s former co-defendant says even releasing the report to members of Congress would be detrimental to them if the case went to trial. Cannon focused Friday on the lack of mechanism the court has to force lawmakers to remain silent about what they learned from the report.
If a member of Congress went to the House to describe what he or she had read, that conduct would be protected by the Speech or Debate Clause of the Constitution.
This story has been updated with additional developments.
