Background: Republican presidential candidate former President Donald Trump attends a news conference with Speaker of the House Mike Johnson, R-La., Friday, April 12, 2024, at Mar-a-Lago in Palm Beach, Fla. (AP Photo/Wilfredo Lee)/ Aileen M. Cannon speaks remotely during a Senate Judiciary Committee oversight nomination hearing to be U.S. District Court for the Southern District of Florida on July 29, 2020, in Washington. (U.S. Senate via AP)
Lawyers for President Donald Trump and his former co-defendants in the Mar-a-Lago classified documents case urged U.S. District Judge Aileen Cannon to order the "constitutional expungement" of special counsel Jack Smith's report, while also alerting the jurist to an appeal that seeks to prevent that outcome.
In a brief Tuesday filing jointly submitted by President Donald Trump, valet Waltine Nauta, and Mar-a-Lago property manager Carlos de Oliveira, the collective former defendants in the unlawful retention of classified documents and obstruction case expressed that they have had "enough."
The question is whether Cannon has also had enough.
The Trump-appointed judge who threw out Jack Smith's prosecution of the then-former president, ruling that Smith was unlawfully appointed as special counsel, has been asked for approximately one year to allow American Oversight and the Knight First Amendment Institute at Columbia University to intervene in the closed criminal case.
The groups, repeatedly dismissed by Trump's team as "liberal organizations" and "purported" nonpartisan nonprofits, were met with Cannon's silence for months as they tried to make the case that a January 2025 injunction the judge issued — one blocking members of Congress from reading Volume II of Smith's report on the Mar-a-Lago investigation — should be lifted.
Trump's case had ended and his newly inaugurated administration ended the appeals of Nauta and de Oliveira. This meant that Cannon's initial rationale behind the injunction — preventing "prejudice" to Trump's former co-defendants who still had active appeals — no longer applied, in the view of the groups.
Cannon is one of few people to have actually read Volume II, having reviewed a redacted and unredacted version in her chambers. Not even a muzzled Smith reviewed Volume II before he testified in a deposition and at a public hearing, fearing that doing so could have violated Cannon's injunction.
The injunction remains in place to this day, and while it is set to automatically expire on Feb. 24, Trump, Nauta, and de Oliveira have in the meantime tried to "permanently" block the DOJ from releasing Smith's "unlawfully prepared" report on their alleged crimes.
Ultimately, it is up to U.S. Attorney General Pam Bondi to decide whether or how much of the report to make public, but Cannon's order has allowed the DOJ simply to back Trump in court. Releasing a public report was the practice in John Durham, Robert Hur, David Weiss, and Robert Mueller's special counsel investigations, and it's what happened with Smith's Jan. 6 investigation of Trump. The Mar-a-Lago volume stands alone as the exception.
American Oversight and the Knight Institute have said on appeal that the ex-defendants have been clear they want the "destruction of all copies of Volume II" so the "public will never have access to the Special Counsel's findings."
As the appeal continues, the interested non-parties in the Mar-a-Lago case have also asked the 11th U.S. Circuit Court of Appeals to force Cannon to issue a stay before she can make that wish come true.
Lawyers for Trump, Nauta, and de Oliveira responded Tuesday by alerting Cannon to the move, telling her the groups' focus on the request for Volume II's "destruction" overhypes an ask for the "constitutional expungement" of the report.
"In hopes of creating some unfounded sense of urgency, Knight Institute and American Oversight emphasize that Mr. Nauta's and Mr. De Oliveira's pending Motion for an Order Permanently Prohibiting the Release of Volume II includes a request for an order directing the destruction (i.e., constitutional expungement) of all copies of Volume II," the filing said.
Slamming "highly speculative and bombastic claims about the potential harms that could ensue without a stay," the former defendants pleaded with Cannon to act.
"Enough is enough. Former Defendants President Trump, Mr. Nauta and Mr. De Oliveira respectfully submit this Notice of the Petition and register their opposition to any stay of proceedings that would prohibit the Court from ruling on the motions pending before it," the filing concluded.
On the other hand, the petition for a writ of mandamus before the 11th Circuit said that if Cannon "orders the destruction of the document at issue […] this Court's jurisdiction will effectively be thwarted and Petitioners […] will have no ability to appeal the district court's order to prevent it being carried out."
Knight Institute senior counsel Scott Wilkens, upon filing the petition, said in a statement that there is "no good reason for withholding this report from the public."
"The public has a right to the report under the First Amendment and common law, and the Freedom of Information Act requires its release as well," Wilkens said.
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