'Not how a just system works': Transparency group asks 11th Circuit to be 'exceptional' and overrule Cannon on buried Mar-a-Lago report even if 'propriety' argument fails

A public advocacy group is urging a federal court of appeals to use any means available and necessary to unseal the second volume of former special counsel Jack Smith's final report on his criminal 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-running dispute over the second volume.

In the first order, Cannon denied efforts to intervene by the Knight First Amendment Institute and transparency-focused nonprofit American Oversight. In her second order, Cannon acknowledged "any former or current party" may move "for leave to intervene."

Since then, nearly parallel litigation concerning the report has been ongoing at both the district court and appellate court levels.

Trump and the U.S. Department of Justice weighed in to commend the judge directly for keeping the report under seal. Meanwhile, the 45th and 47th president's former co-defendants told Cannon "all copies" of the second volume should simply be destroyed.

The groups, unable to file on the original docket, went directly to the U.S. Court of Appeals for the 11th Circuit and requested a swift conclusion — with the occasional assistance of amicus curiae.

Earlier this month, Trump and his allies told the 11th Circuit that Cannon "was well within [her] discretion to deny intervention to access" the second volume of the Smith report.

Now, American Oversight, in a reply brief, is attempting to nudge the reviewing court away from the idea that Cannon's apparent "discretion" in the matter controls the outcome.

First, the group says the 11th Circuit, as a court of appeals, very clearly has the ability to look at the legal questions de novo — or with completely fresh eyes — and rule on the issues anew.

"[T]he Court is asked to decide whether the lower court erred as a matter of law in ruling that, notwithstanding American Oversight's rights under FOIA, it cannot intervene in a criminal case to protect those rights," the reply brief reads. "[T]his question is one of law."

To this end, the group argues the concept of "discretion" both misses the point and is drawn from a body of law the appeals court does not have to rely upon as a source of precedent.

"[T]he out-of-Circuit decision on which the government relies in urging the Court to apply an abuse of discretion standard involved no such question of law or statutory interpretation," the brief goes on.

As a second, complementary argument, the group says the 11th Circuit can — and should — reject the "cramped view" of intervention advanced by Trump, his allies and Cannon.

"[N]either case law nor the Federal Rules of Criminal Procedure requires express statutory authorization for a third party to intervene in a criminal proceeding for the limited purpose of seeking a remedy for impairment to its federal statutory rights," the brief continues. "The Federal Rules of Criminal Procedure are silent as to intervention, but courts have permitted it."

According to Trump, the DOJ, Cannon, and the co-defendants, American Oversight and the Knight First Amendment Institute are out of luck because the underlying case was "criminal" and such cases are generally not open to public intervention.

The group says the criminal nature of the underlying case against Trump is simply no longer what the dispute before the courts is actually about.

"Appellees urge this Court to bar American Oversight's intervention in the district court based on a fundamental misunderstanding of American Oversight's interest as a prospective intervenor," the brief goes on. "Because it had no other recourse to vindicate its rights under FOIA, Appellant sought intervention in the below proceedings—which were governed by federal criminal statutes."

The brief goes on:

American Oversight's statutory rights do not govern the underlying criminal proceedings, nor has it asserted any interest related to "the prosecution or nonprosecution" of the former defendants. American Oversight's interest is more akin to that of media organizations that seek and are granted intervention in criminal cases for access to judicial records…FOIA does not govern the underlying criminal proceedings but provides American Oversight with a federal right, implicated by the district court's order barring the release of Volume II, to seek non-exempt public records from the federal government…

The group also offers an argument in the alternative, in another effort to short-circuit the discretion analysis.

"Even if this Court determines that the propriety of the district court's permanent injunction is not properly before it, it may use its sua sponte powers, available in exceptional cases, to order reversal or to lift the injunction itself," the brief continues.

In other words, whether or not Cannon's power was paramount, the appeals court has the power to bypass the district court and correct an "injustice" — effectively nullifying the injunction, the group argues.

"Congress passed FOIA in recognition of the value of an informed public in a functional democratic society and appropriately balanced the need for transparency against limited confidentiality interests through the statute's exemption scheme," the brief argues. "Cutting off a third party's ability to advocate for proper application of FOIA to records of public importance directly contravenes congressional intent. This is not how a just system works."