Judge Cannon Skeptical Of Garland’s Plan To Show Smith Report On Classified Docs Case To Lawmakers

FORT PIERCE, Florida — A federal judge appeared highly skeptical Friday of Attorney General Merrick Garland’s plan to show lawmakers the volume of special counsel Jack Smith’s report pertaining to his now dismissed criminal case against President-elect Donald Trump for hoarding classified documents.

With the clock counting down towards Trump’s inauguration on Monday, U.S. District Judge Aileen Cannon expressed serious doubts about nearly every argument a Justice Department attorney put forward for allowing the department to show four congressional leaders the portion of Smith’s report covering the classified-information probe.

Over the course of a 90-minute public hearing, Cannon — a Trump appointee— repeatedly questioned the urgency of showing the report to lawmakers in the coming days. The judge also challenged the safeguards the Justice Department says are in place to keep the report confidential and pressed for information on how prosecutors ensure that the report doesn’t contain information protected by grand jury secrecy.

The hearing Friday followed the Justice Department’s release of the first volume of Smith’s report on Tuesday, covering his investigation into Trump’s effort to subvert the 2020 election. Cannon blocked release of the second volume, detailing Smith’s investigation into Trump’s storage of classified documents at Mar-a-Lago after he left office in 2021, while DOJ seeks to revive charges against Trump’s former co-defendants in that case.

“Why is there such urgency to disclose this to Congress right now, prior to the conclusion of the criminal proceeding — which would seem to be the ordinary course?” Cannon asked veteran Justice Department attorney Elizabeth Shapiro. “At the end of the day, what’s the upside of doing this right now?”

Shapiro cited the “historical practice” of sending special counsel reports to Congress and a commitment by Garland to be “fully transparent” about the results of such investigations.

“I’m still not hearing a satisfying answer to that question,” Cannon said.

That prompted Shapiro to acknowledge that Garland only has control over the report for a few more days, given Trump is expected to replace him on Monday with an acting attorney general.

“His time is limited. He appointed these special counsels,” Shapiro said of Garland.

Shapiro said the conditions Garland has proposed for the leaders of the House and Senate Judiciary Committee to review the report — namely that they can only review it at the Justice Department, without electronic devices or staff, and must agree to keep its findings confidential — all but eliminate any danger of it becoming public.

“There’s virtually no likelihood that the report can leak,” Shapiro said.

However, lawyers for Trump and his two former co-defendants in the classified documents case — Walt Nauta and Carlos De Oliveira — said it was clear that Cannon had no authority to police any potential breaches of those conditions by lawmakers. They also argued it was more or less guaranteed that Trump’s political opponents would disclose the information in some fashion.

“The courts cannot order members of Congress to do things,” said Nauta’s attorney Stanley Woodward, who raised his hand as he mocked the secrecy pledge as a “scout’s honor” oath.

“For all intents and purposes, it would really be a release publicly,” Trump attorney John Lauro said.

Cannon noted that the precise scope of grand jury secrecy is often hashed out between parties in a criminal case and resolved by a judge. “In this case, it appears to be a decision that was made entirely unilaterally” by Smith’s team, the judge said.

Cannon also said she received a copy of the report for review on Thursday and that it appeared to contain information Trump’s lawyers had previously argued was covered by attorney-client privilege.

Cannon did not issue an immediate ruling after the public hearing and did not indicate when she planned to do so. She ordered the courtroom cleared of press and spectators for a sealed session where lawyers were set to discuss the contents of the report in detail. Neither Trump nor his former co-defendants were in court for the proceedings.

The Justice Department seemed handicapped at the hearing Friday by the absence of any representative of the special counsel’s office who could speak in detail about how the report was prepared. Smith resigned last week and several of his top prosecutors have also left the department.

Shapiro said she was “confident” the report did not contain classified information, but she could not say whether it had undergone a review by the intelligence community for such content.

Trump’s lawyer said the lack of a persuasive answer about the urgency of the matter supported the notion that Garland’s reasons for disclosing the report to members of Congress were political.

“If counsel were 100% honest about why, it would bring disrepute on the Department of Justice,” Lauro said. “There simply is no good answer.” He later suggested the candid answer might be: “We want to get our last licks in before we leave.”

Lauro also said one reason for Cannon to act was because the whole matter had become unduly distracting to Trump as he prepares to be sworn in next week.

“There is certainly a need for him to give all of his attention and all of his concentration on being president again and not on the intermeddling issues,” Lauro said.

That drew one of the rare moments of disagreement between the judge and Trump’s camp, with Cannon telling Lauro his argument was “too broad” because it suggested Trump should be protected from anything that could be distracting during the transition or even as president.

“Negative press is negative press,” the judge said.

Cannon also pressed lawyers for both sides on whether they were aware of any instance where a special counsel had released a report when a prosecution or appeal was still pending. The attorneys said they weren’t aware of such an instance, although Shapiro mentioned that special counsel David Weiss, who investigated Hunter Biden, testified before Congress while his prosecutions were ongoing.

Neither side mentioned that special counsel Robert Mueller’s final report was released while election-interference charges he brought against various Russian individuals and firms were still pending. Those charges remain open to this day, although the most prominent defendant, Yevgeny Prigozhin, died in a plane crash in 2023.

Trump has strongly protested any release or sharing of Smith’s final report, arguing that the prosecutor was biased and that his appointment was illegal. In a ruling last July, Cannon dismissed the classified documents case in its entirety, agreeing with Trump that Smith was unlawfully appointed by Garland.

The Justice Department quickly appealed that decision but dropped its bid to revive the charges against Trump after he won the election in November. The appeal seeking to reinstate the charges against Nauta and De Oliveira remains pending at the 11th Circuit Court of Appeals in Atlanta, but it’s widely expected incoming Trump appointees will drop it or Trump will squelch the issue by pardoning the men.

Last week, Cannon temporarily blocked the release of any part of Smith’s final report, even though the criminal case she handled is officially closed in court records. She eased that order on Monday, allowing the Justice Department to proceed with public release of the part of Smith’s report that addressed the 2020 election probe.

Justice Department lawyers said in court filings that Garland agreed with a recommendation from Smith that the portion of the report about the documents stored at Mar-a-Lago only be shown to lawmakers and not be released publicly because of the possibility that Nauta and De Oliveira could face a trial if the appeals court reverses Cannon’s ruling dismissing the case.