Judge Cannon’s Stand for Due Process

Judge Cannon’s order this morning enjoining the release of Special Counsel Jack Smith’s final report on the Mar-a-Lago prosecution of President Trump and two others is a stand for what she calls “basic notions of fairness.” The ruling is a searing rebuke of Mr. Smith, the hardcharging prosecutor who she ruled was unconstitutionally appointed. The ruling, likely to be appealed, stands for now as a ringing defense of due process.Judge Cannon’s refusal to release the report is informed, she writes, by the fact that all defendants “enjoy the presumption of innocence held sacrosanct in our constitutional order.” Mr. Trump and his co-defendants —Waltine Nauta and Carlos De Oliveira — all pleaded “not guilty” to Mr. Smith’s charges, which were dismissed “without prejudice” when Mr. Trump regained the White House. That means they can be refiled. All of this was enough, our A.R. Hoffman reports, for Judge Cannon to rule that the release would “cause irreparable damage to former defendants from disclosure of non-public discovery material” and would contravene “basic notions of fairness and justice in the process, where no adjudication of guilt has been reached following initiation of criminal charges.” Mr. Smith’s January 6 report is already in the public ken. Judge Cannon, acknowledging that previous special counsel reports have all seen the light of day, notes that she “strains to find a situation in which a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt, at least not in a situation like this one, where the defendants contested the charges from the outset and still proclaim their innocence.” That makes Mr. Smith’s case sui generis.Nearly a year ago to the day we wrote that “the best part of valor is to bury the report in as deep a hole as Attorney General Bondi can dig” because the publication of “even a redacted version risks damage to due process that rightfully trumps every other issue in this case.” The special counsel regulations empower the attorney general to decide whether to release the report. Here, Attorney General Pam Bondi wants it “consigned to the dustbin of history.”Mr. Smith’s comments on his election interference prosecution add ballast to Judge Cannon’s concern. He told Congress that Mr. Trump was guilty of a “criminal scheme” and that his guilt was “beyond a reasonable doubt” — never mind that Mr. Trump pleaded “not guilty” to that dismissed case, as well. Mr. Smith wrote in his report on that prosecution that he would have convicted him “but for” the outcome of the 2024 election. A mere piffle, it seems.Judge Cannon had sharp words for Mr. Smith, who, she implies, ignored her disqualification ruling by continuing preparation of his report “unabated” and “offering defendants only the courtesy of brief review under strict conditions.” In other words, he jawboned them even after being disqualified. The doughty Floridian writes that she “need not countenance this brazen stratagem or effectively perpetuate the Special Counsel’s breach of this Court’s own order.” Judge Cannon contemplates that Mr. Smith’s preparation of his report might amount to an “outright violation” of her court order — no small beans. As it is, she decries “a concerning breach of the spirit” of her ruling. That she stepped into that breach — and the one that opened in the due process afforded Mr. Trump, and to all Americans — is to her credit. Judge Cannon may be young, but she is already proving her merit and mettle.More broadly, the denouement of the case against Mr. Trump in the federal court in Florida could be a prime exhibit on the dangers of special counsels. Even the stoutest prosecutors seem to have a hard time resisting the use of the vast powers special counsels enjoy. That lesson goes back to President Nixon. If the Mar-a-Lago case goes all the way to the Supreme Court it could be a chance to pick up the trail of abuses special prosecutors have left.

Judge Cannon’s Stand for Due Process

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