Judge Aileen Cannon issued a ruling on Monday purporting to permanently block the release of the long-buried second volume of former Special Counsel Jack Smith’s report into Donald Trump’s Espionage Act case.
Legal expert Andrew Weissmann, however, is confident that Cannon will not have the last word.
“We’re now in the position where the 11th Circuit, one way or the other, is going to have before it the issue of Volume II and whether it sees the light of day,” Weissmann noted. “And the one thing I can say is: at some point, we will see it.”
The 11th Circuit has repeatedly rebuked Cannon over her handling of Smith’s case charging Trump with illegally retaining classified national defense information and obstructing an investigation. A three-judge panel overturned two of Cannon’s rulings in the investigative stage following the search of Mar-a-Lago, and the appeals court forced Cannon to speed up her adjudication of a request to unseal the full Smith report.
In a more than 30-minute conversation, Weissmann explains why he believes another slapdown could be coming.
Cannon’s latest 15-page ruling falsely claims that releasing the report would represent an unprecedented intrusion into the presumption of innocence.
“Moreover, while it is true that former special counsels have released final reports at the conclusion of their work, it appears they have done so either after electing not to bring charges at all or after adjudications of guilt by plea or trial,” the order states. “The Court strains to find a situation in which a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt, at least not in a situation like this one, where the defendants contested the charges from the outset and still proclaim their innocence.”
Former special counsel John Durham released a report despite the fact that two of the three defendants whom he indicted were acquitted. Other special prosecutors Robert Mueller, Ken Starr, and Robert Hur released reports on sitting presidents like Trump, Bill Clinton and Joe Biden following investigations that ended without charges — or in Biden’s case, any allegations of criminal wrongdoing.
The refusal to disclose Smith’s second volume would be the first time in U.S. history that a special counsel report has not been released.
In her 15-page ruling, Cannon accused Smith of a possible “outright violation” of her order dismissing Trump’s case under an Appointments Clause challenge, a finding that Weissmann calls an “incredibly dangerous thing to say with this administration.”
“They are probably looking at this going, ‘Oh, can I charge him with violating that?’” Weissmann noted. “She knows what she’s doing.”
During our discussion, Weissmann and I discussed the parallels between the withholding of this report and the Epstein files and the complicated procedural posture of any appeal.
Watch the interview in full at the top of this newsletter, and read the 15-page order here.
