A federal judge who has consistently ruled in Donald Trump’s favor is now more deeply involved in some of the most significant legal fights over Trump’s mishandling of secret government documents at his private club, Mar-a-Lago, in Florida.
Two years ago U.S. District Judge Aileen M. Cannon, who sits in Fort Pierce, Fla., put an end to Special Prosecutor Jack Smith’s historic criminal prosecution of Trump over those documents. Early last year, she imposed a total ban on any public release of Smith’s final report spelling out the details of the crimes he found in that case.
For months, the judge has awaited the outcome as a federal appeals court considers challenges to her handling of the Mar-a-Lago case. The appeals court has put off a hearing date several times; no hearing may occur until months from now.
In the meantime, Cannon has not been idle. She is overseeing one of the Trump legal team’s boldest maneuvers: a wide-ranging grand jury investigation of their claim, based on century-and-a-half-old laws, that a “grand conspiracy” of former government officials repeatedly violated Trump’s constitutional rights when he was in office the first time and in between his two terms as President.
The conspiracy was said to have included official probing of Russian interference in the 2016 presidential election, as well as Prosecutor Smith’s investigation of Trump’s hoarding of secret documents at Mar-a-Lago after his first term ended.
The laws relied upon in the Trump lawyers’ claim date from 1870, and were originally passed to thwart violence by the Ku Klux Klan. Still intact, these are criminal laws, and violations of them could lead to prison time.
Among the ex-officials known now to be at risk of being charged in the conspiracy investigation is former Central Intelligence Agency director John Brennan.
Now Judge Cannon faces a new challenge that involves both her ongoing supervision of the “grand conspiracy” investigation and her continuing role in maintaining a cloak of secrecy around Prosecutor Smith’s final Mar-a-Lago report.
Last summer, Miami-based FBI officials began contacting a group of former FBI agents or officials who worked with Smith on the Mar-a-Lago prosecution, requesting “voluntary” interviews about their work. (None of those individuals remain at the FBI; they were fired by the Trump Administration for having worked with Smith.)
Last month, the FBI changed course, and began issuing subpoenas to some of the ex-employees, ordering them to appear before the grand jury. That led lawyers for those subpoenaed to ask Judge Cannon to step in and clarify whether their testimony would risk violating her secrecy order.
“Absent clarification,” the lawyers said in their formal motion to the court, “[our] clients cannot testify before the grand jury without risking violating terms of the [secrecy] order.” The lawyers added that, while their clients were illegally fired from the FBI, they “are deeply respectful of all court orders” and do not want to violate any such order.
The lawyers for those agents and officials told Judge Cannon that during private negotiations, the Justice Department has refused to promise that it will protect the agents and officials if their testimony reveals contents of the Smith report. The Justice Department and President Trump’s own lawyers are due to formally reply to this new plea on October 21.
Meanwhile, the grand jury investigation in Fort Pierce has been beset for months by internal troubles, including the firing of a key prosecutor who refused to file charges and the appointment—and then resignation—of another prosecutor who quit because he felt rushed to pursue charges before they were justified.
The investigation is being led by the FBI’s Miami field office, but the headquarters of the Justice Department in Washington is keenly interested in it. So far, Judge Cannon is not known to have intervened to try to straighten out that troubled investigation.
Prosecutor Smith actually produced two volumes of his final report on the criminal cases against Trump. The first volume, describing charges against Trump for his role in the violent mob attack on the U.S. Capitol on January 6, 2021, was released to the public in mid-January last year. Judge Cannon, in Florida, had no supervisory role over that volume describing Smith’s work in Washington, D.C.
The second volume, describing the charges that Smith prepared against Trump and two of his Mar-a-Lago employees in the secret documents case, has never been released because of Judge Cannon’s permanent ban on any public disclosure; she issued that order at the request of Trump and his two employees.
Smith has testified twice before congressional committees, but he declined to comment on or answer questions about Volume II because of Cannon’s secrecy mandate. In fact, the Justice Department had warned Smith about the secrecy order as he prepared to testify on Capitol Hill.
The lawyers for the ex-FBI employees who worked on the Mar-a-Lago case have told the judge that her secrecy order is so broad in scope that it could even forbid those employees from discussing their work with their own lawyers before testifying before the grand jury. As it now stands, the order is so wide that the ex-employees “will have to walk a thin and dangerous line, without the advice of counsel,” the lawyers’ filing argued.
Their request probably will require Judge Cannon herself to walk something of a thin line, because any significant relaxation of the secrecy for these individuals could result in the public release, at some point, of at least some of what Prosecutor Smith had turned up in the Mar-a-Lago case. The less strict a secrecy control is, the wider the circle of those who know the secrets and might share them.
