Left: Former Justice Department special counsel Jack Smith testifies before the Senate Judiciary Committee at the Capitol, Tuesday, Sept. 29, 2026, in Washington. (AP Photo/Allison Robbert). Right: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida).
On the eve of former special counsel Jack Smith's severely restricted testimony before the U.S. Senate Judiciary Committee about his criminal investigations of Donald Trump, the president's personal attorneys asked an appeals court to call out a judge for muzzling Attorney General Todd Blanche.
Over nearly 60 pages, attorneys for Trump, his two eldest sons, the Trump Organization, and for two lawyers who filed the president's lawsuit against the IRS claimed that U.S. District Judge Kathleen Williams issued "extraordinary, unjust" sanctions that "improperly treated the filing of the Complaint as proof of collusion and bad faith[.]"
Williams in July potentially put Trump and his legal team on the hook for attorneys fees of non-party amici curiae who opposed the "non-adversarial" and "collusive" lawsuit, and she also referred the president's lead lawyer Alejandro Brito to the Florida bar as a sanction.
Those "friends of the court" included 35 former federal judges and ex-IRS and Treasury officials who sounded the alarm as Trump moved to voluntarily dismiss his case, only for the president to immediately announce the $1.776 billion "anti-weaponization" fund and "settlement," which additionally immunized his family and himself from backward-looking tax probes.
Rather than focusing on Williams' finding that the plaintiffs "led a multibillion-dollar lawsuit asserting claims that they knew, or should have known, were time-barred," much of the Trump appellate brief at the 11th U.S. Circuit Court of Appeals attacked the judge's "utterly unprecedented restriction on speech" — the part of her ruling barring "improper references to the 'settlement agreement'" she deemed a "sham."
The brief went so far as to allege that Williams timed her order to "inflict political damage on the President" by muzzling Trump's then-nominee Blanche.
"This timing was no accident: two days before Attorney General Todd Blanche's confirmation hearing, the court issued its opinion littered with legal, factual, and citation errors condemning conduct under Senate review, directed that its accusations be sent to his disciplinary authorities, and purported to dictate what he could tell Senators about the case," the brief said. "An Article III judge thus interfered with the Article II confirmation process, supplying a judicial condemnation of the nominee's conduct, while purporting to restrict his ability to respond."
On Tuesday, Jack Smith once again appeared before Congress and remained barred from discussing Volume II of his report, the portion dealing with his investigation of Trump's alleged willful retention of classified documents at Mar-a-Lago and alleged conspiracy to obstruct their return.
U.S. District Judge Aileen Cannon's permanent injunction burying Volume II continues to be supported by Trump the individual, his former co-defendants Walt Nauta and Carlos de Oliveira, and the Trump DOJ.
On appeal, First Amendment groups and Democrats in the Senate have filed briefs in hopes of finally bringing the Mar-a-Lago report to light.
The senators advanced a claim that Cannon's injunction ignored the "lack of adversity" between Trump the former co-defendant and Trump as head of the executive branch in the existing dispute, and frustrated Congress' ability to fully vet FBI Director Kash Patel.
"[A]ccording to public reports, federal prosecutors subpoenaed Mr. Patel to testify before a grand jury investigating President Trump's retention of classified materials after leaving office and granted Mr. Patel immunity to facilitate his testimony in November 2022 after Mr. Patel invoked his Fifth Amendment right against self-incrimination and refused to answer questions," said a letter from Senate Judiciary Committee Democrats to then-Acting Attorney General James McHenry on Jan. 29, 2025, explaining their interest in Volume II at the time.
Senate Judiciary Committee Ranking Member Sen. Dick Durbin, D-Ill., was one of the signatories on the brief, and at the top of Smith's latest hearing, Durbin bashed Cannon by name as a "MAGA loyalist."
"It is sad to see my colleagues contort themselves to support President Trump's lies. I expect that will continue today because of the limits placed on Mr. Smith's ability to testify by MAGA loyalist Judge Aileen Cannon and the Trump Administration," he said. "Judge Cannon has enjoined the release of Volume II of the Special Counsel report on the classified documents investigation, and Mr. Smith himself is enjoined from providing information about that investigation unless the Justice Department has made that information public."
"There was nothing untoward about Special Counsel Smith and his fellow prosecutors conducting this investigation," he added.
Cannon, a Trump appointee, cited "careful study" while dismissing Trump's indictment and finding that Smith was unlawfully appointed as special counsel.
Roughly a year and a half later, the judge slammed Smith for his "brazen" decision to produce the report at all.
Also Tuesday, a three-judge panel on the 11th Circuit denied the request for a stay pending appeal of Williams' sanctions order that Trump and the DOJ supported, writing that the president and his lawyers "have not persuaded us to construe the sanction more broadly and have not made a strong showing that they will prevail on their First Amendment challenges."
"They do not cite any authorities suggesting that a speech-related prohibition imposed as a penalty for conduct determined to be sanctionable violates the First Amendment. Indeed, in judicial proceedings, 'whatever right to 'free speech' an attorney has is extremely circumscribed,'" the order said.