Columbia University Group Denounces as ‘Meritless’ Judge Cannon’s Ruling That Blocks Release of Jack Smith’s Mar-a-Lago Report

The next chapter in the contest of whether to release Special Counsel Jack Smith’s final report on his Espionage Act prosecution of President Trump is commencing with a brief asking a powerful appellate court to publish the dispatch. The “supplemental opening brief” filed by Columbia’s Knight First Amendment Institute to the 11th United States Appeals Circuit is a bid by the legal group to claw its way back onto the case. Judge Aileen Cannon has so far barred Knight from the litigation, ruling that the institute lacks standing.Judge Cannon ruled in February that the report’s release would cause “irreparable damage” and constitute a “manifest injustice” to the three defendants charged but never tried by Mr. Smith — Mr. Trump, Waltine Nauta, and Carlos De Oliveira. The Department of Justice takes the position that the report should be “confined to the dustbin of history.” The DOJ prescribes “constitutional expungement,” or destruction. Judge Cannon stopped short of sliding the report into the shredder, which preserves the possibility that her decision to “permanently block” its release could be rendered temporary by the 11th Circuit. Her ruling, though, seethed with anger at the behavior of Mr. Smith and his office. Judge Cannon accused him of a “brazen stratagem” to contravene her disqualification of him from the case — the blow to the prosecution that resulted in the dismissal of the dozens of charges stemming from the storage of secret documents at Mar-a-Lago that Mr. Smith hoped eventually would yield convictions. Judge Cannon determined that Mr. Smith’s work on the report after his disqualification amounted to “a concerning breach of the spirit” of her ruling, or even “an outright violation of it.” Knight declares in a statement that “report is a government record of profound public importance that must be released. The public has the right to see this report under the First Amendment, common law, and Freedom of Information Act. It’s that simple.”Judge Aileen Cannon of the Southern District of Florida. Via Wikimedia CommonsKnight’s new filing to the 11th Circuit rejects Judge Cannon’s argument that releasing the report would injure the due process rights of the defendants in the now-dismissed case. Knight writes that the “presumption of innocence is a trial right that allocates the burden of proof, not a freestanding bar to the public release of government records. Courts routinely unseal indictments, search warrant affidavits, and other case materials without violating the presumption.” Judge Cannon said she failed to find an instance in “which a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt.” Knight counters that Mr. Smith’s report on his election interference case against Mr. Trump “was publicly released even though all charges against President Trump were dismissed without any adjudication of guilt.”Knight denounces as “meritless” the linkage drawn by Judge Cannon between her disqualification of Mr. Smith and the unlawfulness of releasing his report. The group reckons that the “constitutionality of the Special Counsel’s appointment has no bearing on the Institute’s statutory right of access” under the Freedom of Information Act. The Supreme Court has held that exceptions to FOIA “must be narrowly construed.”Knight reasons that if it were true that any record produced by a disqualified prosecutor was required to be sealed, no document generated by, say, Alina Habba and Lindsey Halligan — two acting United States attorneys appointed by Attorney General Pam Bondi who were later ruled unlawful — would be accessible to the public. The group ventures that such an outcome “cannot be the law.”This new brief contends that Judge Cannon’s disqualification of Mr. Smith applied only to the “criminal case” — meaning the indictment he prepared. It ought not to touch his preparation of his report, which is a requirement sourced not to the criminal code but rather to the so-called “Reno Regulations,” which govern the duties of special counsels. Under those regulations discretion whether to release the report is assigned to the attorney general.Knight tells the 11th Circuit that “nothing in the order barred preparing” Mr. Smith’s final report. The group concludes that Judge Cannon’s ruling “defies historical practice. Every final Special Counsel report except for Volume II” — the report at issue here — “has been released in full or with targeted redactions. Only the Mueller Report had substantial redactions, which were later challenged in FOIA litigation and overruled in part.” The 11th Circuit is also being asked by Knight to overrule Judge Cannon on a question of constitutional bedrock. The trial judge determined that the release of Mr. Smith’s report would violate the presumption of innocence afforded to all criminal defendants. Knight, though, argues that the “presumption of innocence is a trial right, not a freestanding shield against disclosure of government records.” The January 6 report, Knight notes, “was published even though all charges against Trump were dismissed without any adjudication of guilt, and even though he continues to proclaim his innocence.” The 11th Circuit is set to hear oral arguments for and against the Mar-a-Lago report’s release on September 28.

Columbia University Group Denounces as ‘Meritless’ Judge Cannon’s Ruling That Blocks Release of Jack Smith’s Mar-a-Lago Report

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