117. Judge Cannon and the Special Counsel's Report
The Supreme Court could soon be dragged into one last dispute arising from the prosecutions of President-Elect Trump—this time over public release of part of the Special Counsel's final report
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The Court made quite a lot of news last week, but I thought I’d use the “Long Read” to unpack a complicated but important procedural saga that could find its way to the Court this week—the dispute, in the Mar-a-Lago classified documents case, over whether Attorney General Garland can publicly release that part of Special Counsel Jack Smith’s final report relating to the (now-abandoned) January 6 prosecution of President-Elect Trump.
If you’re already wondering how the report’s treatment of the January 6 case (which was brought in the D.C. federal district court) could be the subject of messy litigation in the Mar-a-Lago case (which was brought in the Southern District of Florida), well, therein lies much of the rub. Untangling exactly what’s happened, exactly what is happening, and exactly how and why the issue could end up before the justices very shortly, will take a little bit of explaining. To jump to the punchline, though, it certainly appears that Judge Cannon is abusing her authority in ways that could prevent the report from being released before January 20. The question, which the Supreme Court may soon play a central role in answering, is whether she’s going to be able to succeed.
But first, the news from the Court—of which there’s a lot.
On the Docket
Obviously, the biggest headline out of the Court last week was Thursday night’s 5-4 ruling denying President-Elect Trump’s request to block his Friday sentencing on the 34 counts on which he was convicted in the New York hush money prosecution. The Court’s cryptic order identified two reasons for denying relief (both of which I had flagged in Thursday morning’s post)—that “the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal,” and that “the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.” Indeed, the only surprise to me was that four justices publicly dissented (Justices Thomas, Alito, Gorsuch, and Kavanaugh). It would’ve been nice to know why, but there was no written statement. In any event, we’ve seen this lineup (the Chief Justice and Justice Barrett in a 5-4 majority with the Democratic appointees) in prior cases with broad rule-of-law implications (see also the trivia, below); I suspect we might be seeing more of it in the near future.
The Court was also very busy on Friday—hearing almost three hours of oral argument in the TikTok case, and then granting certiorari in three new cases, including two biggies. Taking TikTok first, my own superficial takeaway is that things did not go especially well for TikTok or the content creators on the First Amendment challenges to the statute. At the same time, Justice Alito floated the possibility of doing what President-Elect Trump had asked—to issue some kind of temporary freeze of the statute so that, once Trump can come to office, he can do … something(?) … to make the legal dispute go away. I still think that such a move would be lawless. But to my surprise, Solicitor General Prelogar seemed to suggest otherwise in response to Alito—albeit without by any means endorsing it. So it seems like the Court has three options at this point: (1) do … something … to prevent the statute from going into effect on January 19 while it sorts out the merits; (2) decide the merits between now and January 19; or (3) deny the pending emergency applications between now and January 19 (so the statute goes into effect), and take its time to resolve the merits. I still think that (3) is the cleanest way out of this mess, but we’ll see.
Later on Friday, the Court added three new cases to its docket for the current term—including two big disputes. In Braidwood, Judge Reed O’Connor had struck down key parts of the Affordable Care Act’s requirement that health insurers provide cost-free coverage for certain preventive health care. As affirmed by the Fifth Circuit, the case had held that the “Preventive Services Task Force,” which helps to identify which services do and don’t have to covered for free under the act, is unconstitutional (because its members aren’t appointed by the President), and that the Task Force’s recommendations for which services had to be covered by insurers therefore couldn’t be enforced. This may sound technical, but it has massive, potentially nationwide implications for what most of our health insurance carriers are and are not required to cover for free. Granting the Biden administration’s cert. petition suggests that at least some of the Republican-appointed justices are not convinced that the Fifth Circuit was right.
The Court also granted a second Biden administration petition challenging a Fifth Circuit ruling—this time in Department of Education v. Career Colleges and Schools of Texas. In that case, the court of appeals had blocked implementation of a rule intended to streamline the process for reviewing requests for student loan forgiveness from borrowers whose schools defrauded them or were shut down. What’s really interesting about the grant is that the Justice Department had also asked the Court to take up, in that case, whether lower courts have the power to issue nationwide relief at all (an issue that, as I noted last week, it’s asking the justices to consider in the context of its emergency application in the Corporate Transparency Act case). The Court refused to grant certiorari on that question in the Texas colleges case—suggesting that it may be equally uninterested in the Biden administration’s invitation to resolve the issue in the CTA case.
And the third grant came in a … less-exciting … tax case out of the Third Circuit. So if you’re scoring at home (or, as Keith Olbermann used to say, “even if you’re by yourself”), that means that, of the 63 total cases the Court has granted so far this term, 16 have come from the Fifth Circuit (18 if we count the Louisiana redistricting cases—which came from a three-judge district court including a Fifth Circuit judge). 18/63 is 28.6% of the docket—from a court that, for the calendar year ending on March 31, 2024, was responsible for 12.4% of federal civil appeals (a total that doesn’t even account for cases in state courts). That’s just a stunning (and revealing) disparity. By contrast, the three courts of appeals responsible for the next-most number of Supreme Court cases this term—the Second, Ninth, and D.C. Circuits—are responsible for 18 combined (six each).
Turning to this week, we expect a full Order List at 9:30 ET this morning, followed by the beginning of the regular January argument session. The Court has announced that it “may” (i.e., will) hand down one or more decisions in argued cases Wednesday at 10:00 ET. And it certainly stands to reason that we’ll get some movement on the Biden administration’s aforementioned emergency application in the Corporate Transparency Act case some time after the government files its reply brief, which is expected later today—along with whatever, if anything, is going to happen in the dispute described below over the public release of part of the Special Counsel’s final report.
The One First “Long Read”: Mar-a-Lago-Palooza
[This week’s “Long Read” has been cross-posted to Just Security.]
To tell the full story of the Mar-a-Lago classified documents case at this point is … beyond my capabilities (and, I assume, your patience). But we can make a very long story shorter by focusing on these key points:
On July 15, Judge Aileen Cannon had dismissed the entire Mar-a-Lago case (involving charges against President-Elect Trump and two co-defendants—Walt Nauta and Carlos De Oliveira) after concluding, more than a little dubiously, that Special Counsel Smith’s appointment had been unconstitutional. As relevant here, this was a final judgment ending the case in the district court (a fact that is going to matter in a minute).
The government appealed Cannon’s decision to the Eleventh Circuit, defending the constitutionality of Smith’s appointment.
After the election, Special Counsel Smith moved to dismiss the appeal without prejudice solely as it related to Trump—based on the Justice Department’s internal understanding that sitting presidents (as Trump soon will be) cannot be criminally prosecuted. The Eleventh Circuit agreed, but the appeal as to Nauta and De Oliveira remained (and remains) pending on the appointment issue.1
Under the Special Counsel regulations, Smith was required to (and last Tuesday, did) transmit to Attorney General Garland a report summarizing the investigations he conducted and the prosecutions he brought. There is, apparently, a separate volume for the January 6 prosecution in D.C. (I’ll call this the “January 6 volume”); and for the Mar-a-Lago prosecution (I'll call this the “MAL volume”).
On Wednesday, Garland suggested, in a letter to the chair and ranking members of the House and Senate judiciary committees, that he is not going to publicly release the MAL volume at least so long as the case against Nauta and De Oliveira remains pending (the letter notes his intent to make that volume available to the chairs and ranking members, “for in camera review . . . upon your request and agreement not to release any information from Volume Two publicly”). But he otherwise is planning to publicly release a redacted version of the January 6 volume—consistent with the requirements of the Special Counsel regulations.
Last week, Nauta and De Oliveira filed two emergency motions to block the release of both volumes—one in the Eleventh Circuit (as part of the government’s appeal of Cannon’s dismissal) and one with Judge Cannon. They’re also seeking to block the volumes from being shared, even in camera, with the chairs and ranking members of the House and Senate judiciary committees. Even though Garland’s letter stipulates that he won’t publicly release the MAL volume so long as the case against Nauta and De Oliveira remains pending, the co-defendants (and Trump, who has filed as an amicus) have argued that both volumes should be blocked—because they are “inseverable.” DOJ, meanwhile, has represented to the Eleventh Circuit that the January 6 report “does not refer to either [of the co-defendants] or describe the evidence or charges against them.” Thus, the MAL defendants are trying to use the pendency of the case against them as an excuse to block release to the public or the relevant members of Congress not only of the MAL volume (which isn’t going anywhere), but also of the apparently unrelated January 6 volume.2
Last Tuesday, Judge Cannon granted Nauta’s and De Oliveira’s request to block the release of both volumes—while the Eleventh Circuit decided whether to block the release as part of the federal government’s appeal on the appointment issue.3 Cannon’s order, which came before the government had even had a chance to respond, enjoined any dissemination of both volumes outside the Department of Justice (including to the chairs and ranking members of the House and Senate judiciary committees) until “three days” (more on this in a moment) after the Eleventh Circuit ruled on the co-defendants’ similar pending request.
It’s not at all obvious that Cannon even had jurisdiction to provide that relief. It’s well-settled that a notice of appeal, especially after a final judgment, divests district courts of almost all of their jurisdiction over a dispute. None of the exceptions courts have recognized to this general rule (e.g., to stay or un-stay the ruling under appeal; to aid the appellate court’s consideration of the appeal; or to modify existing injunctions) seem to remotely encompass what Cannon did.4 In any event, at least initially, the stated justification for the district court’s intervention was solely to ensure that the Eleventh Circuit would have time to consider the matter. That’s now happened because…
On Thursday, the Eleventh Circuit denied Nauta’s and De Oliveira’s request to block release of the volumes. In the same order, it declined (correctly, in my view) the government’s invitation to provide additional relief against Cannon—because the government hadn’t yet appealed Cannon’s order. That ruling started the three-day clock on Cannon’s injunction.
Under Federal Rule of Civil Procedure 6(a)(1)(C),5 when a court order gives a time period in days, we “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” In other words, Cannon’s injunction, if it’s not modified, will expire (clearing the way for the public release of the January 6 volume) at the end of the day, today (and not, as many assumed, yesterday).
On Friday, the government filed a notice of appeal from Cannon’s injunction, asking the Eleventh Circuit to reverse or vacate it.
Also on Friday, having lost in the Eleventh Circuit, Nauta and De Oliveira, rather than going to the Supreme Court, went back to Cannon and asked her to extend her Tuesday injunction—to prevent release of the report indefinitely, and to prevent it from being made available, even on an in camera basis, to anyone outside of the Department of Justice, including the chairs and ranking members of the House and Senate judiciary committees.
Overnight Friday/very early Saturday morning, the government asked the Eleventh Circuit to consolidate its new appeal (item #11) with its existing appeal of the dismissal of the whole prosecution (item #1)—so that the Special Counsel report dispute can be expeditiously and conclusively resolved by the same panel hearing the appeal in which it ostensibly matters.
On Saturday, Cannon ordered the government, in conjunction with Nauta’s and De Oliveira’s request to extend the injunction, to provide additional information about what, exactly, is in the January 6 volume—and how, if at all, it relates to the case against Nauta and De Oliveira. The government complied with that request yesterday, and appears to have filed sealed material supporting its response.
In other words, at least as of a little after 7:00 ET on Monday morning, (1) Cannon’s injunction is still in effect; (2) it is currently set to expire at midnight tonight; (3) Nauta’s and De Oliveira’s request to extend it remains pending before Judge Cannon; and (4) the government’s appeal of the injunction (in its current form) remains pending in the Eleventh Circuit. If your head is spinning, you’re not alone.
The upshot is that there does not appear to be a dispute over whether the MAL volume will be publicly released; it likely won’t be anytime soon. The litigation at this moment is really over the January 6 volume—which doesn’t seem to have any connection to the MAL prosecution. And just to say the quiet part out loud, the urgency here stems from the unspoken but universally held understanding that, if the January 6 volume hasn’t been publicly released by January 20, it won’t be. Thus, the issue here isn’t just that Cannon appears to be exceeding her authority; it’s the possibility that the timing of this emergency appellate jousting might frustrate effective appellate relief from her interventions.
As for where the Supreme Court comes in, there are at least three different paths, depending upon what happens next:
Scenario 1: Cannon does not extend the injunction today. Here, the path to the Court would be for Nauta and De Oliveira to seek emergency relief from the justices—asking them to do what the Eleventh Circuit declined to do on Thursday. Such an ask would be a longshot, but it’s at least a procedurally viable path to getting this dispute before the justices.
Scenario 2: Cannon extends the injunction today, but the Eleventh Circuit quickly stays or vacates it. In this scenario, it likewise stands to reason that Nauta and De Oliveira would ask the justices to put Cannon’s injunction back into effect—by either staying or vacating the Eleventh Circuit’s intervention.
Scenario 3: Cannon extends the injunction, and the Eleventh Circuit doesn’t disturb it. In this scenario, it would be the Justice Department asking the Supreme Court to step in—to stay or vacate Cannon’s injunction presumably after the Eleventh Circuit refused to do so. Critically, in this scenario (unlike the first two, where the timing wouldn’t be as urgent), public release of the Special Counsel’s report, or, at least, the January 6 volume, would very likely depend upon the Supreme Court intervening before next Monday.
Because there are still moving pieces in the lower courts, it’s hard to be confident about which of these scenarios will come to pass. But it seems a decent bet, at least based on the parties’ (and Judge Cannon’s) behavior to this point, that one of them will. And that will thrust the justices right back into the middle of a Trump-prosecution-based emergency dispute—one in which the ability of the public to ever see the contents of the Special Counsel’s report, or at least the January 6 volume, could very well hang in the balance.
SCOTUS Trivia: The Emergence of a New 5-4 Lineup?
As noted above, Thursday’s ruling refusing to block President-Elect Trump’s sentencing in the New York hush money case wasn’t the first time we’ve seen that particular 5-4 lineup—with Chief Justice Roberts and Justice Barrett joining the three Democratic appointees in the majority. But by my count, it’s only the third time that we’ve seen that specific lineup in the four-plus years Justice Barrett has been on the Court—and all three have come with respect to emergency applications. In addition to Thursday’s ruling, there was also the 5-4 grant of relief to the Biden administration last January in the razor-wire case; and the 5-4 grant of relief to the Biden administration the previous August in the ghost guns case.6
It’s too early, and there’s too little data, to say too much about this particular lineup—or what it says about the types of cases in which both the Chief Justice and Justice Barrett are inclined to join the Democratic appointees, but neither Justice Gorsuch nor Justice Kavanaugh are. My own (tentative) view is that these are the cases in which the Chief Justice’s elusive but not illusory institutional commitments, and Justice Barrett’s emerging independence, are separating them from the other Republican appointees. For a host of reasons that I suspect are obvious, we may see more such cases sooner rather than later.
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Smith has handed the responsibility for the MAL prosecution over to the U.S. Attorney for the Southern District of Florida.
The Justice Department could thus presumably moot Nauta’s and De Oliveira’s objections by dropping the case against them (which it could do by dismissing its appeal of Judge Cannon’s dismissal). At that point, Nauta and De Oliveira would presumably have no standing to object to the release of the Special Counsel’s report. That said, the Department has a strong institutional interest in defending the constitutionality of Special Counsel appointments—an interest that is presumably why it is continuing to pursue the appeal even on the far side of the election (and the likelihood that the prosecution will be dropped under the next administration).
The order also bars the Justice Department from making either volume available, even on an in camera basis, to the chairs and ranking members of the House and Senate judiciary committees.
The government hasn’t made much out of the jurisdictional point—perhaps because it doesn’t want to invite litigation over whether this unique fact pattern should provide a new exception to the general rule divesting district courts of jurisdiction in these contexts.
It may be that, because the injunction was issued as part of a criminal case, it’s the Federal Rules of Criminal Procedure that apply. But that’s a distinction without a difference; midnight tonight would also be the deadline under Fed. R. Crim. P. 45(a)(1)(C).
During the same period, there have been four 5-4 rulings with the Chief Justice and Justice Kavanaugh joining the Democratic appointees in the majority—two in merits cases; and two respecting emergency applications. And there has been one 5-4 (merits) ruling in which Justices Gorsuch and Barrett joined the Democratic appointees in the majority.
Hey, Steve, you left out Scenario 4:
9:00 AM EST today: DOJ drops all charges against Nauta and de Oliveira
9:05 AM EST today: DOJ transmits redacted copies of both reports to the White House
9:10 AM EST today: President Biden releases both reports to the public, along with a joint statement with AG Garland.
ALL LEGAL.
AG Garland should give it to President Biden, Biden should drop it ASAP(release all of it) and shake Trump's hand while smiling at him on Jan 20th and walk away.