Anti-Trump Legal Lion Tapped by Senate Democrats for New Mission: Release of Jack Smith’s Mar-a-Lago Report

The submission by 10 Democratic senators of a brief arguing for the release of Special Counsel Jack Smith’s Mar-a-Lago report marks a milestone in the push to release a document whose publication has been blocked by Judge Aileen Cannon.The filing Friday is docketed at the 11th United States Appeals Circuit. In September that tribunal, which oversees Judge Cannon, will hear oral arguments over whether to reverse her ruling that “permanently blocked” the report’s release.The brief is of the amicus curiae, or “friend of the court,” variety. That means while the signatories are not parties to the case, they assert a stake in its outcome. The senators enlisted a boldfaced name to draft the brief — the liberal legal lion Norm Eisen. He authored it on behalf of Senators Schiff, Blumenthal, Whitehouse, Coons, Welch, Durbin, Hiromo, Padilla, and Klobuchar.The lawmakers call Mr. Smith’s failed prosecution of President Trump for the storage of secret documents at Mar-a-Lago an event of “extraordinary public importance.” That case, which included dozens of charges sourced to the 1917 Espionage Act, was seen by some as the strongest of the four criminal prosecutions levied against the president.In 2024, though, Judge Cannon — who was appointed by Mr. Trump in 2020 — dismissed all of the charges in the case after finding that Mr. Smith was unlawfully appointed by Attorney General Merrick Garland. Mr. Smith appealed that ruling to the 11th Circuit, but Mr. Trump’s victory in the 2024 presidential election meant that the higher court never ruled on that petition, which also pertained to Mr. Trump’s two co-defendants.Earlier this year Judge Cannon once again upended the now-dormant case when she blocked the release of Mr. Smith’s final report — a summary mandated by the special counsel regulations promulgated by Attorney General Reno. The request that the report be released comes not from Mr. Smith but instead from two liberal legal groups — the Knight First Amendment Institute at Columbia and American Oversight.The report’s release is opposed by not only the president but also by the Department of Justice, which once signed Mr. Smith’s checks but now is set against publishing his magnum opus. The previous attorney general, Pam Bondi, wrote to Judge Cannon that the dispatch ought to be “consigned to the dustbin of history.” She also backed Mr. Trump’s call for “constitutional expungement” — a euphemism for destroying the document.Judge Cannon did not go that far, though she did accuse Mr. Smith of a “brazen stratagem” to complete his report even after she disqualified him — a chronology that, she ventured, violated the “spirit” of her order. Now this latest amicus brief argues that the DOJ’s alignment with the president fails the constitutional requirement of “adversity” — meaning that a case requires opposing parties. That flows from the parchment’s command that federal courts hear only “cases” and “controversies.”The senators also assert a colorable legislative interest in the release of Mr. Smith’s report. Mr. Eisen cites on their behalf the duty assigned to senators to confirm certain executive branch nominees. The brief points to the role of the FBI director, Kash Patel, in Mr. Smith’s case. Mr. Patel was was subpoenaed by Mr. Smith, but invoked the Fifth Amendment’s protection against self-incrimination. The report, though, likely features Mr. Smith’s speculations about Mr. Patel’s role in the documents case. The senators write that the “core responsibilities” of the office that Mr. Patel now holds “include seeking and telling the truth.” The implication is that Mr. Smith’s allegations — which have never been tested before a jury — could have affected Mr. Patel’s prospects for confirmation. He was confirmed by a 51 to 49 vote. Mr. Patel publicly claimed to have seen Mr. Trump declassify documents, a claim that Mr. Trump did not make himself in court.Mr. Eisen’s brief rejects Judge Cannon’s contention that releasing the report would compromise the due process rights of Mr. Trump and the two other defendants — Waltine Nauta and Carlos De Oliveira. Mr. Eisen writes that “there is no jury pool to taint, no pending suppression motion to affect, and no upcoming trial.” Last month a former prosecutor, Carmen Mercedes Lineberger, was charged with criminally emailing herself a copy of the report disguised as a Bundt cake recipe. The indictment at the Southern District of Florida does not allege that she shared the report with anyone else. She faces years in prison if convicted, and the DOJ has asked Judge Cannon to impose further sanctions.Mr. Eisen, who is now affiliated with the Brookings Institution and CNN, has previously locked horns with Mr. Trump. Mr. Eisen served as co-counsel to the House Judiciary Committee during the first impeachment of Mr. Trump. Mr. Eisen formerly served as America’s ambassador to the Czech Republic under President Obama. The former envoy’s mother survived deportation to Auschwitz from the former Czechoslovakia. He did not reply to a request for comment by the time this article went to print.

Anti-Trump Legal Lion Tapped by Senate Democrats for New Mission: Release of Jack Smith’s Mar-a-Lago Report

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