(Note to readers: This report deals with the situation as of mid-morning Saturday. It is very fluid, with a number of “ifs” noted, and could change at any time.)
Between now and Sunday night, the final government report on what happened with highly sensitive, secret documents at Donald Trump’s Mar-a-Lago private club might vanish or else be kept out of view of the American public for years.
This weekend could be crucial to the fate of a document known as “Smith Final Report Volume Two.” The fate may be strongly affected or even determined in a U.S. courthouse in downtown Fort Pierce, Fla., close to the Atlantic Ocean. That is where U.S. District Judge Aileen M. Cannon sits, and Volume Two is under her control at the moment.
Since Special Counsel Jack Smith’s prosecution of Trump in the Mar-a-Lago documents case began in June 2023, that case has been assigned to Judge Cannon. The well-known history is that she has repeatedly ruled in Trump’s favor, including a string of actions (some later overturned by a federal appeals court) that meant serious delays in the prosecution. Her most important action came last July, when she dismissed the entire case, ruling that Smith’s appointment was invalid, without any authority under the Constitution or federal law.
Because Smith has appealed that ruling (and the appeal is still pending in a higher federal court), Judge Cannon may have lost jurisdiction to do anything further; the Justice Department argues fervently that she has no authority until the appeal is resolved. Smith dropped Trump from that appeal after the election, but the case continues because there are charges remaining against two of Trump’s employees at Mar-a-Lago, Waltine Nauta and Carlos DeOliveira.
Because Nauta and DeOliveira are still involved, Judge Cannon has taken over the dispute between federal prosecutors and defense lawyers for those two men; this weekend, that dispute centers on whether Volume Two will be made public and shared with leaders in Congress. (Last Tuesday, Smith’s Volume One was made public; it details with his probe of the attempt to overturn Trump’s defeat in the 2020 election, an attempt that included the violent attack on the U.S. Capitol on January 6, 2021.)
Volume Two might be seriously embarrassing to Trump, because it could show damaging details about why he took them when he left the White House, what he might have done with them, and what damage his retention and mishandling of them may have caused to the nation’s security.
Trump’s lawyers have been shown Volume Two, and he and his attorneys are sufficiently concerned about its contents that they have sought to re-enter the case now in Judge Cannon’s court, even though Trump no longer faces any criminal charges there.
Although there is apparently widespread interest in what is in the Mar-a-Lago report, its actual release to the public is not likely at this point, because U.S. Attorney General Merrick Garland has decided not to release it while charges remain pending against the two Trump employees. He and his Department see the continuing prosecution of the Mar-a-Lago case as important to the future of the authority to name special independent prosecutors like Jack Smith.
Garland, however, does want to release Volume Two to leaders of the two congressional Judiciary Committees, with a promise from them not to share it publicly. Trump and the two employees, however, fear it would be leaked from Capitol Hill.
Friday afternoon, Trump’s plea to join in the case or at least to be allowed to file his views on Volume Two were considered by Judge Cannon at a 90-minute hearing in the Fort Pierce courthouse. Besides Trump’s involvement, the judge was considering what to do about any sharing of Volume Two by Garland.
News reporters who attended the hearing said the judge was noticeably skeptical about allowing release of that report even to members of Congress.
Although the continuing dispute has been treated by all of the lawyers involved as an urgent, even emergency matter, the judge finished that hearing without announcing a ruling. The news organization Politico quoted the judge as asking a Justice Department lawyer: “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?…At the end of the day, what’s the upside of doing this right now?”
The urgency from the Justice Department’s perspective is quite clear: after this weekend, the federal government changes hands, Donald Trump becomes President, and the fate of Volume Two then resides with the new Administration.
Judge Cannon seems to have three options this weekend, each of which probably could have the practical effect of keeping Volume Two under wraps:
• She could do nothing, feeling no urgency to act over the weekend when courts are usually closed.
• She could rule that Trump will be allowed as a party in the case, and thus keep control of it even if something were to happen to end the charges against his two Florida employees.
• She could directly order Garland not to share Volume Two with anybody outside of the Justice Department as long as the case against the employees goes on.
Any one of those choices would mean that, as of Monday afternoon, the dispute over Volume Two as a practical matter would be transferred to the Trump Administration after the inauguration. Presidential power would be entirely his as soon as he takes the oath.
Trump as President could pardon his two Mar-a-Lago workers and simultaneously tell his Justice Department to bar any release of Volume Two, which could mean that it remains undisclosed for the next four years, with interest in its contents perhaps fading by then.
What, if anything, could Attorney General Garland and the Biden Administration do this weekend or Monday morning – their only remaining time in office – to protect Volume Two and even make it public for all to see?
These appear to be the only options:
• Give up the case against Nauta and DeOliveira, dropping the charges to take control of Volume Two away from Judge Cannon, since she probably would no longer have jurisdiction. Democratic members of Congress have recommended this as a way to release the volume.
• Garland could risk contempt of Judge Cannon by asserting his own prerogative under federal law to decide what happens to Volume Two. He has had that option all along.
• President Biden could order Garland to release Volume Two. Under the terms of the Supreme Court’s presidential immunity decision last summer, Biden probably is protected from punishment for contempt of court or has complete immunity to give orders to his Attorney General.
• Biden could end the case by acting on his own to pardon the two Mar-a-Lago workers, explaining that releasing Volume Two was more in the public interest than pressing the charges further. Presidential pardon power, according to the Supreme Court, is near to absolute.
The courts will be closed this weekend, but that would not bar lawyers from taking action and get some quick response.
