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 should quickly overturn a ruling issued by a district court judge that severely limited who will be allowed to offer legal arguments about the fate of the second volume of former special counsel Jack Smith's final report on his investigations into President Donald Trump, a motion filed this week argues.
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."
Now, the outside groups, in a 19-page motion, are imploring the U.S. Court of Appeals for the 11th Circuit to overturn Cannon's rejection – and to move forward with their appeal on an expedited basis.
On Friday, the Knight First Amendment Institute filed the motion, and American Oversight joined, based on "statutory, common law, and constitutional rights of access to a document of singular importance to an ongoing and national debate about the character and actions of the President," the appeal reads.
"At issue is the public right of access to Volume II of Special Counsel Jack Smith's final report on his investigations and prosecutions of President Trump," the filing summarizes. "Volume II addresses the Special Counsel's investigation and prosecution of then-former President Trump and his associates, Walt Nauta and Carlos De Oliveira, for the alleged unlawful retention of classified documents after Trump left office in January 2021."
While the criminal case against Trump petered out due to Cannon's novel use of the U.S. Constitution's Appointments Clause in July 2024, the case against Nauta and De Oliveira continued for a while.
In January 2025, Cannon used the then-ongoing prosecutions to justify keeping the second volume under judicial lock and key. Cannon's order also "directed the parties to file a Joint Status Report within thirty days of the conclusion of all appellate proceedings and/or any continued proceedings" at the district court level.
By February 2025, the criminal case was dismissed entirely. So, in turn, the two groups filed a motion to intervene – in an effort to have the second volume of Smith's report made public.
But then, for months, very little happened at all.
In the case against Nauta and De Oliveira at the 11th Circuit, the last docket entry occurred in January 2025. In the case against Trump, the last entry came in February 2025. And, until a flurry in early December 2025, the last district court entry occurred in July 2025.
In September 2025, frustrated by the lack of progress on the second volume, the Knight Institute and American Oversight directly petitioned the 11th Circuit for writs of mandamus directed at Cannon herself. Those groups wanted the higher court to force the lower court to rule on their motions to intervene – effectively a sidelong effort to get the ball rolling on the issuance of Smith's report.
In late November 2025, a three-judge appellate panel determined Cannon "established undue delay" by declining to respond to earlier motions to intervene filed by the two groups. To that end, the panel gave the lower court a 60-day deadline to finally respond. The upshot appeared to be the appeals court hanging the prospect of that requested mandamus relief over Cannon's head like a time-locked sword of Damocles; if she would not act, they would, maybe.
On Dec. 1, 2025, the DOJ and defense attorneys for Nauta and De Oliveira filed a joint status report – largely reiterating positions expressed in prior submissions that the second volume should never be released due to "extraordinary prejudice they would suffer" if the report ever left the DOJ. The next day, Trump himself filed a motion to intervene in the case as amicus curiae, taking a similar position.
Then, having heard from the defendants, Cannon acted quickly.
Now, the groups are taking issue with how the judge ruled – saying she "was wrong to reject" the motion to intervene because she incorrectly determined the second volume was not a "judicial record."
To hear Cannon tell it, the issue was simple because no party filed the second volume on the docket in connection with a motion.
The groups, however, say the second volume does qualify because the 11th Circuit has defined judicial records as "materials submitted by litigants—whether or not they are formally filed with the district court—that are integral to judicial resolution of the merits of any action taken by that court."
Cannon also rubbished efforts to intervene based on a right of access under the Freedom of Information Act (FOIA), noting how judges are typically loath to apply the nation's premier transparency law in criminal cases.
"The court was also incorrect to deny the Knight Institute leave to intervene to protect its rights under FOIA," the motion goes on. "[Cannon's] reasoning misinterprets this Court's precedents and disregards authorities from within [the 11th Circuit] holding that intervention in a criminal case, although rare, is proper when 'a third party's constitutional or other federal rights are implicated by the resolution of a particular motion, request, or other issue during the course of a criminal case.'"
The groups, when making their argument for quick resolution of their appeal – by way of an expedited briefing schedule – stress how time has stretched on in the dispute so far, arguing a speedier appellate pace is appropriate after months of glacial district court activity.
"This Court's grant of mandamus relief reinforces the need for an expedited appeal," the motion reads. "The Court found 'undue delay' in the district court's resolution of the Knight Institute's motion to intervene. At that time, the Institute's motion had been pending for more than six months. The motion had been pending for more than eight months when the district court finally issued its decision. Against that background, expedited appellate proceedings are especially warranted."
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