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).
Former special counsel Jack Smith spent Tuesday answering confused questions about basketball rather than testifying about the specifics of his dismissed classified documents prosecution of President Donald Trump, ever mindful of U.S. District Judge Aileen Cannon's permanent bar against disclosure. Just one day later, an appeals court decided to set oral arguments challenging Cannon's burial of the report even sooner than anticipated.
The 11th U.S. Circuit Court of Appeals had added United States v. Knight First Amendment Institute to its "tentative" calendar and removed it at least five times since would-be intervenors American Oversight and the Knight Institute sought to stave off the "destruction" of Volume II in late December.
As of Tuesday, the parties were preparing for arguments to unfold during the week of Jan. 18, 2027, but as of Wednesday morning, the court has scheduled arguments for 2 p.m. on Nov. 2, a Monday.
"The Court has determined that the cases listed on the attached calendar are to be orally argued on 11/02/2026 in Atlanta, Georgia. Counsel for each party must present oral argument unless excused by the Court for good cause shown," a memorandum said.
The Trump-appointed jurist who found Smith was unlawfully appointed as special counsel, dismissed Trump's indictments for alleged willful retention of classified information and conspiracy, and invalidated all of the special counsel's acts went on in February to permanently block the Mar-a-Lago report's release without ordering its destruction.
While Trump the individual, his former co-defendants Walt Nauta and Carlos de Oliveira, and the Trump DOJ continue to support that result on appeal, American Oversight and the Knight Institute argue Cannon's "legally erroneous" rejection of the "public's right of access" should lead the 11th Circuit to vacate the injunction and "order Volume II placed on the public docket."
As part of her order, 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 wanted to speak about Volume II during a deposition and in a prior public hearing before Congress, but with Cannon's injunction in place, he didn't go there, believing the DOJ "will do everything in their power" to indict him "because they've been ordered to by the president." The ex-special counsel remained silent on the substance of the Mar-a-Lago case once again on Tuesday.
"Our investigation developed proof beyond a reasonable doubt that President Trump engaged in criminal activity," he said. "If asked whether to prosecute a former President based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat."
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