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Jack Smith's Special Counsel Report - Judge Cannon stopped release without jurisdiction [1]
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Date: 2025-01-07
I had just published my diary when I saw that Judge Aileen Cannon had ordered the report's release blocked. The part about jurisdiction is by MSNBC's Lisa Rubin below.
Her order prevents Smith and the Justice Department from moving forward with releasing the report until the 11th Circuit Court of Appeals has time to review the emergency motion by Trump's co-defendants to release the report.
The 11th Circuit has already smacked down Cannon on two other occasions.
The first one was in December of 2022, when the court told her that a challenge to the seizure of property, the classified documents, could only be challenged when there was an indictment.
"The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so," the 11th Circuit panel wrote.
The second one was when she tried to create a Special Master to review all the classified documents before they they could be used by Jack Smith, and she was soundly reversed.
There were reports that judges on the 11th Circuit had advised her not to take the classified documents case in the first place because of her inexperience. She didn't listen. We know why. She wanted to do Trump favors.
She's made other questionable judgments along the way like asking the lawyers in the case to create jury instructions before there was even the start of a trial.
She confused the Presidential Records Act with classified documents, just like Trump said over and over again. He kept saying that the Presidential Records Act allowed him to take classified documents with him. And then, if you remember, he claimed that the classified documents were unclassified just by thinking about them.
She was going to release the names of witnesses that the prosecution were going to use against Trump, Nauta, and Olivieri, then backed down when everyone said: What? The case is still in the discovery phase. This would jeopardize an ongoing Department of Justice investigation.
She refused to issue a gag order on Trump because he was saying and posting things that were endangering law enforcement. This was after Trump said that the FBI raiding Mar-a-Lago had a shoot to kill order. Him. At the time of the search, of course, he was in New York, the FBI had deliberately planned it that way.
First, she would set deadlines, then change them, set them for far in the future, then take them off the calendar altogether.
Even the start of the case was crazy. In June of 2023 she set a trial date of August 14th 2023. Her reasoning was that she needed to do the 70 day speedy trial guarantee. Everyone knew that wasn't possible. She postponed the trial multiple times after that. Eventually she got to the point where she postponed it till after the 2024 election. Then in July of 2024 she threw out the case entirely based on Jack Smith's appointment being unconstitutional. She took the hint from the end of a decision that Justice Clarence Thomas made that had no business being there.
It goes on and on.
There is a great deal of question whether she can even make this ruling, and whether the Attorney General has to abide by the decision. Her partisan rulings in favor of Trump are obvious.
MSNBC analyst Lisa Rubin thinks that Cannon didn't have jurisdiction to make the ruling. She threw the case out herself last July, so she no longer has anything to do with it. How can she rule on a case no longer in front of her?
Here's her actual ruling:
Attorney general Merrick Garland, the Department of Justice, Special Counsel Smith, all of their officers, agents and employees and all persons acting in active concert or participation with such individuals...are TEMPORARILY ENJOINED from (a) releasing, sharing, or transmitting the Final Report or drafts of such report outside of the Department of Justice or (b) otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in the Final Report or drafts thereof.
Trump's lawyers should have gone to the 11th Circuit Court of Appeals, if anything, first. It turns out they did before going to Judge Cannon, or at least simultaneously. They went to Cannon because they knew she would rule in their favor quickly, even without a thought to jurisdiction. After the appeals court, they could try the NY Supreme Court or take it to the Supreme Court, which is much more likely as SCOTUS has already found imaginary logic several times to rule in Trump's favor.
I expect the 11th Circuit Court of Appeals to reverse Judge Cannon a third time with this ruling, probably with another rebuke.
Here's all the background before Cannon made her ruling:
_______________________________
Jack Smith, being a special counsel, has to write a report of his investigation of the Jan. 6th insurrection and Trump's culpability, and also the classified documents case. It doesn't matter that the cases have been quashed with Trump's impending presidency. Smith still has to deliver the report to Attorney General Merrick Garland, who has the final say on whether to release it.
CNN:
Lawyers for Donald Trump have reviewed a draft of Special Counsel Jack Smith's final report related to Federal investigations into the president elect and are threatening legal action if he releases it, according to a letter included in court filings from Trump's former co-defendants Monday night. In the court filings, Walt Nauta and Carlos de Oliveira ask Judge Aileen Cannon to block release of the special report.
The two men, who worked for Trump, argued in the filings that Smith does not have the authority to release the report because Cannon previously deemed his appointment as special counsel unlawful.
But, the lawyers have it wrong. Jack Smith is not releasing the report, only Attorney General Merrick Garland has the authority to do that.
The filings included a letter to Attorney General Merrick Garland making similar arguments, and stating that they were allowed "to review the two volume draft report in a conference room at Jack Smith's office between January 3rd and January 6th, 2025." ...the lawyers had...asked for advanced notice of the report's release so that they can "take appropriate legal action."
The lawyers complained that the report:
"...revealed a one-sided narrative arguing that the defendants committed the crimes charged in the case."
Fancy that. Criminals offended by being described as criminals. How could the report do anything else? There is no other side when the evidence points in one direction.
Garland has told Congress he plans to provide lawmakers with the report, allowing for redactions required under Justice Department policy.
Redactions would be those including Nauta and Olivieri, as the Justice Department is continuing to prosecute their cases.
Smith said the report would be delivered to Garland by 1:00 p.m. ET Tuesday and the earliest Garland would release it would be on Friday morning.
The special counsel's office indicated the report would have two volumes. Likely one volume dedicated to the documents case and another related to the separate January 6th related federal charges against Trump.
The office added that it plans to provide more on its position to Cannon Tuesday evening. The defense attorneys, however, expressed dissatisfaction with the level of redactions in the draft that they reviewed.
Judge Canon dismissed the case against them and Trump during the summer on the basis that Jack Smith's appointment was unconstitutional. Every legal expert called that decision completely wrong based on 150 years of precedent on special counsels. The Justice Department is still appealing that ruling.
Their lawyers contended that releasing the report as is would irreversibly and irredeemably prejudice them as defendants.
Because the defendants are "strictly precluded from refuting the report," releasing the report would make it, "even more unfairly prejudicial," they said.
I'm not sure why they would need to refute the report and why they can't. The report itself is not a piece of evidence. The prosecution would not be quoting from the report, just some of the evidence it contains. If their names and information about them, and presumably the evidence against them is all redacted, what is the objection?
"The final report is meant to serve as a government verdict against the defendants against all criminal justice norms and constitutional guide posts," they argued to the judge.
That was all from Walt Nauta's and Carlos De Oliveira's lawyers. Trump's lawyers also stood up to bat.
In a letter to Attorney General Merrick Garland, Trump's attorneys have urged him to end "the weaponization of the justice system" and hand the report over to them.
CBS News:
Attorneys for president elect Donald Trump asked Attorney General Merrick Garland to remove Jack Smith from his post and either decline to release Smith's report...or hand over the matter to Trump's incoming administration.
Just like Nauta and Olivieri's attorneys, Trumps lawyers contended that Smith did not have the authority to even submit a final report.
The correspondence was written in part by defense attorneys Todd Blanche and Emil Bove, Trump's picks to serve as Deputy Attorney General and Principal Deputy Attorney General in his upcoming administration.
Garland has previously pledged to publicly release special counsel reports completed under his tenure.
Just like his co-conspirators lawyers, Trump's lawyers reviewed the draft of the report at Smith's office. They argued that:
.. preparation of a report would violate federal law related to official appointments and presidential transitions.
"Because Smith has proposed an unlawful course of action, you must countermand his plan and remove him promptly. If Smith is not removed, then the handling of the report should be deferred to the President Trump's incoming Attorney General, consistent with the will of the People," Trump's attorney's wrote. They also said they would seek legal recourse should Garland deny their requests.
"Will of the People." Another way of saying mandate. This is not a legal argument. The lawyers know this, but as any lawyer would, they use any ammunition they've got. It's just that it sounds so much like Fox News.
We all know damn well that if the report isn't released now, it will be locked away, never to be seen again.
While no date has been publicly announced for the release of Smith's report, the defense attorneys (for Nauta and Olivieri) asked Cannon to issue a ruling by Friday.
Not so coincidentally, that's the same day that Donald Trump is to be sentenced by Judge Merchan in the 34 felony convictions case in New York.
It's not clear if US District Judge Aileen Cannon has the authority to direct the Attorney General in this matter.
Trump's lawyers also said in their letter to Garland, "Equally problematic and inappropriate are the draft's baseless attacks on other anticipated members of President Trump's incoming administration which are an obvious effort to interfere with upcoming confirmation hearings.
So, because they're Trump's nominees, they are immediately exonerated by Trump winning the election.
The American people have paid for this work to be done. We have the right to see it. It can't be allowed that history is rewritten by omission.
Already, the truth about January 6th is fading in the public's memory, if they ever really knew the truth. With all the Republicans lying about January 6th, the likelihood of history being written correctly gets smaller every day.
All people remember now about the classified documents case is Trump being angered about Mar-a-Lago being searched. They don't know the vast security risk he caused, and is still causing, by his theft of national secrets that were available to thousands going through his club.
Lawyers can argue till they're red in the face, but the reality is that the report has to be released. Garland can't make an exception now, just like he didn't for Robert Hur's report on President Biden.
The public has a right to know what kind of criminal they've elected President.
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