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We’ve discussed Trump’s ongoing efforts to prevent the release of former Special Counsel Jack Smith’s report on the now-dismissed classified documents prosecution against the president. That issue has now resurfaced. As we discussed at the time, Judge Aileen Cannon, who was appointed by Trump and has always ruled in his favor, was never going to order the release of Volume II of the Special Counsel Report, which covers the classified documents found at Mar-a-Lago. But now the matter is in the hands of a different court, the Eleventh Circuit Court of Appeals, which has not hesitated to correct Cannon’s errors in the past.
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There is a fascinating resonance between Cannon’s decision to prevent the release of Volume II and the issue we’ve seen surface in Trump v. IRS, the case whose “settlement” led to the creation of the slush fund Trump can use to give taxpayer dollars to January 6 defendants while erasing his and his family’s liability for debts owed to the government, like back taxes from tax audits. The common thread is cases where, instead of a legitimate adversarial process, with opponents duking it out in court, Trump is the actual party in interest on “both sides of the v.” In both of these situations, it’s Trump v. Trump, which leaves the president to decide what positions government agencies will take in these supposed legal conflicts. In the case of the special counsel’s report, DOJ, which would normally argue for its release, has taken Trump’s side. And Judge Cannon has played along.
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On Inauguration Day, she issued an order blocking the Justice Department from sharing the Volume II with leaders of the House and Senate Judiciary committees, who were set to receive it in accordance with the typical practice after a special counsel concludes their work. With DOJ on Trump’s side, there was no one to challenge it.
Then, in February in a piece appropriately titled, “If DOJ is Trump’s Law Firm, Aileen Cannon is his Judge,” we discussed Cannon’s next move. She ruled on what she characterizes as two “unopposed” motions, one by Trump, one by his co-defendants in the Mar-a-Lago case, both designed to prevent release of Volume II. At the time I noted, “If it weren’t such a serious matter, ‘unopposed’ would be funny—these motions preventing the routine release of a special counsel’s report are only unopposed because the Attorney General, who should have filed an opposition, lives in Trump’s hip pocket. Cannon has managed to hold up the release of Volume II for over a year at this point.”
While Judge Cannon was doing everything possible to prevent the release of Volume II, two groups of journalists, American Oversight and the Knight First Amendment Institute, asked to intervene in the case to ensure a truly adversarial proceeding, with the parties presenting opposing views on whether the report should be released. Cannon dealt with that by dragging her feet, simply refusing to rule on the request. That went on until November, when the matter reached the Eleventh Circuit and she was given 60 days to rule. The Eleventh Circuit pointed to “undue delay.” Cannon predictably ruled against permitting intervention, and the issue was appealed to the Eleventh Circuit.
Now, the Eleventh Circuit has ordered a briefing schedule on the requests to intervene and argue in favor of the release of the report. The timing is fast, with the next set of briefs due 14 days from the date of the order, and all of the briefing to be concluded by July.
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The scheduling order is signed by Judge Nancy Abudu, who was appointed to the Eleventh Circuit by President Biden. The court will have to consider the issues once the briefs are in, but the ruling over Cannon’s foot dragging signaled they were out of patience with her efforts to keep her thumb on the scale for Trump. There is good reason to be optimistic here, even if the process takes time. Assuming the media entities are permitted to join the proceedings, there would still have to be briefing on the issue of release, but here again, Cannon was an outlier, and there is good reason to believe the Eleventh Circuit would not agree. DOJ’s accidental release earlier this year of a document detailing some of the work in the case gives us reason to believe there could be interesting material in the report.
Is it coincidence that two separate cases, involving two of the most important challenges to Trump’s ability to exert control over the government and pervert the rule of law, are coming to fruition at the same time? Perhaps so. But what’s at stake here is a core constitutional principle. Article III of the Constitution gives federal courts jurisdiction to decide actual “cases” or “controversies,” which means there must be opposing parties with conflicting interests. The Supreme Court has held that the “case or controversy” requirement means there has to be a genuine, active dispute between genuinely adverse parties for a court to have jurisdiction. Trump has elicited favorable decisions in both the IRS case and the release of the report case by trying to avoid that requirement. But it’s starting to look like time is up.
If this doesn’t sound like an enormous development, admittedly, it’s a bit inside baseball. But by forcing Trump to act within the confines of the rule of law, courts can create accountability. Refusing to let Trump him get away with using them as a sham vehicle for perpetrating frauds that allow him to extract government funds for his personal use or avoid accountability for past conduct is an important reassertion of real guardrails. The one-two punch of courts requiring him to face an actual adversary would be a welcome development.
Trump’s past is finally catching up with him.
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We’re in this together,
Joyce