Judge Cannon and the Special Counsel’s Report

This piece is crossposted at Steve Vladeck’s substack, One First

To tell the full story of the Mar-a-Lago classified documents case at this point is … beyond my capabilities (and, I assume, your patience). But we can make a very long story shorter by focusing on these key points:

1. On July 15, Judge Aileen Cannon had dismissed the entire Mar-a-Lago case(involving charges against President-Elect Trump and two co-defendants—Walt Nauta and Carlos De Oliveira) after concluding, more than a little dubiously, that Special Counsel Smith’s appointment had been unconstitutional. As relevant here, this was a final judgment ending the case in the district court (a fact that is going to matter in a minute).
2. The government appealed Cannon’s decision to the Eleventh Circuit, defending the constitutionality of Smith’s appointment.
3. After the election, Special Counsel Smith moved to dismiss the appeal without prejudice solelyas it related to Trump—based on the Justice Department’s internal understanding that sitting presidents (as Trump soon will be) cannot be criminally prosecuted. The Eleventh Circuit agreed, but the appeal as to Nauta and De Oliveira remained (and remains) pending on the appointment issue.[1]
4. Under the Special Counsel regulations, Smith was required to (and last Tuesday, did) transmit to Attorney General Garland a report summarizing the investigations he conducted and the prosecutions he brought. There is, apparently, a separate volume for the January 6 prosecution in D.C. (I’ll call this the “January 6 volume”); and for the Mar-a-Lago prosecution (I’ll call this the “MAL volume”).
5. On Wednesday, Garland suggested, in a letter to the chair and ranking members of the House and Senate judiciary committees, that he is notgoing to publicly release the MAL volume at least so long as the case against Nauta and De Oliveira remains pending (the letter notes his intent to make that volume available to the chairs and ranking members, “for in camera review . . . upon your request and agreement not to release any information from Volume Two publicly”). But he otherwise is planning to publicly release a redacted version of the January 6 volume—consistent with the requirements of the Special Counsel regulations.
6. Last week, Nauta and De Oliveira filed two emergency motions to block the release of both volumes—one in the Eleventh Circuit (as part of the government’s appeal of Cannon’s dismissal) and one with Judge Cannon. They’re also seeking to block the volumes from being shared, even in camera, with the chairs and ranking members of the House and Senate judiciary committees. Even though Garland’s letter stipulates that he won’t publicly release the MAL volume so long as the case against Nauta and De Oliveira remains pending, the co-defendants (and Trump, who has filed as an amicus) have argued that both volumes should be blocked—because they are “inseverable.” DOJ, meanwhile, has represented to the Eleventh Circuit that the January 6 report “does not refer to either [of the co-defendants] or describe the evidence or charges against them.” Thus, the MAL defendants are trying to use the pendency of the case against them as an excuse to block release to the public or the relevant members of Congress not only of the MAL volume (which isn’t going anywhere), but also of the apparently unrelated January 6 volume.[2]
7. Last Tuesday, Judge Cannon granted Nauta’s and De Oliveira’s request to block the release of both volumes—while the Eleventh Circuit decided whether to block the release as part of the federal government’s appeal on the appointment issue.[3] Cannon’s order, which came before the government had even had a chance to respond, enjoined any dissemination of both volumes outside the Department of Justice (including to the chairs and ranking members of the House and Senate judiciary committees) until “three days” (more on this in a moment) after the Eleventh Circuit ruled on the co-defendants’ similar pending request.
8. It’s not at all obvious that Cannon even had jurisdiction to provide that relief. It’s well-settled that a notice of appeal, especially after a final judgment, divests district courts of almost all of their jurisdiction over a dispute. None of the exceptions courts have recognized to this general rule (e.g., to stay or un-stay the ruling under appeal; to aid the appellate court’s consideration of the appeal; or to modify existing injunctions) seem to remotely encompass what Cannon did.[4] In any event, at least initially, the stated justification for the district court’s intervention was solely to ensure that the Eleventh Circuit would have time to consider the matter. That’s now happened because…
9. On Thursday, the Eleventh Circuit denied Nauta’s and De Oliveira’s request to block release of the volumes. In the same order, it declined (correctly, in my view) the government’s invitation to provide additional relief against Cannon—because the government hadn’t yet appealed Cannon’s order. That ruling started the three-day clock on Cannon’s injunction.
10. Under Federal Rule of Civil Procedure 6(a)(1)(C), when a court order gives a time period in days, we “include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” In other words, Cannon’s injunction, if it’s not modified, will expire (clearing the way for the public release of the January 6 volume) at the end of the day, today(and not, as many assumed, yesterday).
11. On Friday, the government filed a notice of appeal from Cannon’s injunction, asking the Eleventh Circuit to reverse or vacate it.
12. Also on Friday, having lost in the Eleventh Circuit, Nauta and De Oliveira, rather than going to the Supreme Court, went back to Cannon and asked her to extendher Tuesday injunction—to prevent release of the report indefinitely, and to prevent it from being made available, even on an in camera basis, to anyone outside of the Department of Justice, including the chairs and ranking members of the House and Senate judiciary committees.
13. Overnight Friday/very early Saturday morning, the government asked the Eleventh Circuit to consolidate its new appeal (item #11) with its existing appeal of the dismissal of the whole prosecution (item #1)—so that the Special Counsel report dispute can be expeditiously and conclusively resolved by the same panel hearing the appeal in which it ostensibly matters.
14. On Saturday, Cannon ordered the government, in conjunction with Nauta’s and De Oliveira’s request to extend the injunction, to provide additional information about what, exactly, is in the January 6 volume—and how, if at all, it relates to the case against Nauta and De Oliveira. The government complied with that request yesterday, and appears to have filed sealed material supporting its response.

In other words, at least as of a little after 7:00 ET on Monday morning, (1) Cannon’s injunction is still in effect; (2) it is currently set to expire at midnight tonight; (3) Nauta’s and De Oliveira’s request to extend it remains pending before Judge Cannon; and (4) the government’s appeal of the injunction (in its current form) remains pending in the Eleventh Circuit. If your head is spinning, you’re not alone.

The upshot is that there does not appear to be a dispute over whether the MAL volume will be publicly released; it likely won’t be anytime soon. The litigation at this moment is really over the January 6 volume—which doesn’t seem to have any connection to the MAL prosecution. And just to say the quiet part out loud, the urgency here stems from the unspoken but universally held understanding that, if the January 6 volume hasn’t been publicly released by January 20, it won’t be. Thus, the issue here isn’t just that Cannon appears to be exceeding her authority; it’s the possibility that the timing of this emergency appellate jousting might frustrate effective appellate relief from her interventions.

As for where the Supreme Court comes in, there are at least three different paths, depending upon what happens next:

Scenario 1: Cannon does not extend the injunction today. Here, the path to the Court would be for Nauta and De Oliveira to seek emergency relief from the justices—asking them to do what the Eleventh Circuit declined to do on Thursday. Such an ask would be a longshot, but it’s at least a procedurally viable path to getting this dispute before the justices.

Scenario 2: Cannon extends the injunction today, but the Eleventh Circuit quickly stays or vacates it. In this scenario, it likewise stands to reason that Nauta and De Oliveira would ask the justices to put Cannon’s injunction back into effect—by either staying or vacating the Eleventh Circuit’s intervention.

Scenario 3: Cannon extends the injunction, and the Eleventh Circuit doesn’t disturb it. In this scenario, it would be the Justice Department asking the Supreme Court to step in—to stay or vacate Cannon’s injunction presumably after the Eleventh Circuit refused to do so. Critically, in this scenario (unlike the first two, where the timing wouldn’t be as urgent), public release of the Special Counsel’s report, or, at least, the January 6 volume, would very likely depend upon the Supreme Court intervening before next Monday.

Because there are still moving pieces in the lower courts, it’s hard to be confident about which of these scenarios will come to pass. But it seems a decent bet, at least based on the parties’ (and Judge Cannon’s) behavior to this point, that one of them will. And that will thrust the justices right back into the middle of a Trump-prosecution-based emergency dispute—one in which the ability of the public to ever see the contents of the Special Counsel’s report, or at least the January 6 volume, could very well hang in the balance.

– – – – – – – – – – –

[1] Smith has handed the responsibility for the MAL prosecution over to the U.S. Attorney for the Southern District of Florida.

[2] The Justice Department could thus presumably moot Nauta’s and De Oliveira’s objections by dropping the case against them (which it could do by dismissing its appeal of Judge Cannon’s dismissal). At that point, Nauta and De Oliveira would presumably have no standing to object to the release of the Special Counsel’s report. That said, the Department has a strong institutional interest in defending the constitutionality of Special Counsel appointments—an interest that is presumably why it is continuing to pursue the appeal even on the far side of the election (and the likelihood that the prosecution will be dropped under the next administration).

[3] The order also bars the Justice Department from making either volume available, even on an in camera basis, to the chairs and ranking members of the House and Senate judiciary committees

[4] The government hasn’t made much out of the jurisdictional point—perhaps because it doesn’t want to invite litigation over whether this unique fact pattern should provide a new exception to the general rule divesting district courts of jurisdiction in these contexts.