Main: An aerial view of former President Donald Trump's Mar-a-Lago club in Palm Beach, Fla., on Aug. 31, 2022 (AP Photo/Steve Helber/File). Right inset: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida).
Current and former FBI agents are asking the judge who barred former special counsel Jack Smith from speaking about his Mar-a-Lago report on President Donald Trump to clarify whether they can safely testify as part of the DOJ's "grand conspiracy" probe in Florida.
The motion to intervene, first reported by Politico, said that federal agents and analysts "participated in the investigation and prosecution of" Trump and the 2022 search of Mar-a-Lago, which led to his indictment in the classified documents and conspiracy case.
U.S. District Judge Aileen Cannon famously tossed out the indictment by finding that Smith was unlawfully appointed as special counsel, deeming him little more than a "private citizen."
The Trump-appointed jurist went on to bury Volume II of Smith's report as a consequence of the dismissal, criticizing Smith for his "brazen" move to create the document in the first place.
After Cannon permanently blocked the DOJ and then-Attorney General Pam Bondi "or her successor(s)" from "releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice" or "otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof," Smith was severely restricted in what he could say publicly about the classified documents case.
The intervenors, not wanting to be on the receiving end of a Cannon scolding for violating her injunction, asked for clarification on how the order applies to them in a grand jury subpoena context.
"Absent clarification, Clients cannot testify before the grand jury without risking violating terms of the Order. DOJ has reportedly taken the position that any disclosure of nonpublic information that may be contained in Volume Two would violate the Order, even if such disclosure was made in response to congressional inquiry, in response to requests made under the Freedom of Information Act, or during privileged communications with counsel," the filing said.
"When counsel requested clarification of DOJ's interpretation of how its investigation interacts with the Order, the government responded that its 'work does not disturb [the] Order,'" the motion continued. "However, it did not elaborate nor provide any factual or legal basis from which it came to that conclusion."
In general, the FBI agents — "most" of whom "were unlawfully fired and are no longer federal employees" — expressed a willingness to "voluntarily testify before the grand jury," but not when "possible punitive consequences" loom.
"They are likely to be asked questions pertaining to information in Volume II of the report, which may or may not fall within the scope of the Order, forcing them to make the difficult choice between: (1) possible contempt of the Order; (2) not providing full, unconstrained testimony to the grand jury in order to comply with the terms of the Order; or (3) invoking their Fifth Amendment right not to incriminate themselves," the would-be intervenors said. "The first two options bear possible punitive consequences, while the third creates unnecessary negative optics for innocent former federal civil servants who are said to be witnesses yet may be perceived as withholding information simply due to the need to protect themselves from being held in contempt."
"Although most were unlawfully fired and are no longer federal employees, Clients are deeply respectful of all court orders and do not wish to violate them," the motion stated.
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