Back Where Judge Cannon Began

It is a Friday afternoon in Ft. Pierce, Florida, where the litigation in Donald Trump’s federal criminal case is set to wind down much as it began: with a hearing before U.S. District Judge Aileen Cannon on the question of whether she should slap an injunction on the Justice Department related to its use of certain documents.

More than two years ago, when Trump and federal prosecutors first faced off for their first big courtroom showdown, Trump had not yet been indicted or declared his candidacy for President. But his lawyers asked Judge Cannon anyway to step in after FBI agents executed a search warrant at Mar-a-Lago, and the judge duly obliged.

Much has changed in only a few short months. The attorney general appointed a special counsel to take over the case. The special counsel sought Trump’s indictment. Judge Cannon dismissed the case. The special counsel appealed. Trump got elected president. The special counsel moved to dismiss the case against Trump. The special counsel wrote a report. And the remaining defendants have sought to enjoin the sharing of that report with members of Congress.

Leaving us all roughly back where we started: a hearing before Judge Cannon about whether and how the Justice Department can use information it obtained in an investigation of the once-and-future president.

Now, a few minutes before 2 p.m., I am seated on a wooden pew in Judge Cannon’s courtroom, alongside with the clutch of press hands who bothered to show up for this weird epilogue of the classified documents case.

At the defense table, I spot some familiar faces. John Lauro, Trump’s Washington-D.C. based counsel, is here on behalf of the President-elect. Waltine Nauta’s attorney, Stanley Woodward, who Trump recently appointed to join his White House legal team, is there too. For Carlos De Oliveira, it’s John Irving and Donnie Murrell. 

On the other side of the room, attorneys representing the special counsel’s office are conspicuously absent—the special counsel having finished his work and resigned and the prosecution having been kicked back to the Justice Department proper.

In their stead, the Justice Department has sent Elizabeth Shapiro and Brian Boynton, both of whom work in the Department’s Civil Division. The United States Attorney for the Southern District of Florida, Markenzy Lapointe, is here, too.

At 2 p.m. sharp, the ever-prompt Judge Cannon sweeps into the room. She kicks things off by explaining why we’re here: first, to hear arguments on Nauta and De Oliveira’s motion to preclude release of the special counsel’s report and, second, to hear arguments on Trump’s motion to intervene in support of the same.

To that end, the judge announces that she has reviewed Vol. 2 of the special counsel’s final report, two copies of which were recently delivered to her chambers by the Justice Department, as directed in a prior order.  Judge Cannon acknowledges that the copies she reviewed reflect two distinct versions of the report: an unredacted copy, and a redacted copy representing a version that the Attorney General intends to make available for review by certain members of Congress.

According to the government, the redacted version excludes all information that remains under seal or is prohibited from public disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure, which governs grand jury secrecy. 

With these initial remarks behind her, Judge Cannon invites counsel for Nauta and De Oliveira to present arguments on their joint motion to enjoin the Justice Department from allowing in camera review of the report. In response, Woodward rises from his seat at the defense table, where he announces that he intends to argue on behalf of both Nauta and De Oliveira. 

With that, Woodward makes his way to the lectern. When he arrives, he begins by acknowledging that both the defense and the prosecution agree that Vol. 2 should not be released to the public at large. The only question before the court is whether the report should be made available for review by four members of Congress, he says.

Woodward contends that the judge has lawful authority to issue an order enjoining the Justice Department from making that limited disclosure to congressional leaders. He cites Rule 16 of the Federal Rules of Criminal Procedure, which establishes that a court may regulate the discovery process in a criminal case by, for example, issuing a protective order to prevent the disclosure of discovery materials.  Mag. Judge Bruce Reinhart issued a protective order pursuant to Rule 16 in June of 2023, shortly after the indictment was handed up. The protective order, which was proposed by the government, prohibits defense counsel from disclosing discovery materials. According to Woodward, this demonstrates that the prosecution has previously embraced the idea that courts are authorized to restrict the release of information in a criminal case.

What’s more, Woodward points to the district court’s inherent supervisory authority to restrict the dissemination of information in a criminal case. As he tells it, that authority empowers a judge to “do what must be done.” The point, he stresses, is that Judge Cannon possesses “ample” authority to grant the requested relief without resorting to a civil injunction standard, which would require the defendants to show “irreparable harm.”

Judge Cannon jumps in to ask about a different Federal Rule of Criminal Procedure: Rule 6(e), which prohibits the disclosure of matters occurring before a grand jury. In their initial motion to block release of the special counsel’s final report, Nauta and De Oliveira argued that the report is “flush with material that violates the spirit of the rule.” While the government has said that its redacted version of the report does not contain such information, Judge Cannon asks Woodward for his view. Upon review of the redacted version of Vol. 2, do you believe that the report contains Rule 6(e) grand jury material?

Yes, he replies.  As Woodward expounds upon the law surrounding disclosure of 6(e) material, however, it becomes clear that he has adopted an especially expansive interpretation of the rule. The “spirit” of 6(e), he tells Judge Cannon, applies to any information that exists only because of the fact that a grand jury was investigating.

 Judge Cannon wants Woodward to be more specific. Which categories of information in the redacted version implicate 6(e) material? she queries. In response, Woodward lists several categories of information, including “references to subpoenas” and “references to records obtained pursuant to a subpoena.”

And have you had any opportunity to propose counter redactions? Judge Cannon asks.

Woodward explains that his first opportunity to review the redacted report was on Sunday, when he arrived in Florida ahead of today’s hearing. It’s 100-plus pages, he reminds Judge Cannon. At that time, he admits, the government invited him to write a letter in response. But I couldn’t get it done within that brief window of time, Woodward grouses.

Then Woodward turns to the subject of a different letter: A Jan. 15 letter that Democratic members of Congress sent to Garland, urging him to dismiss the case against Nauta and De Oliveira so that the entirety of the special counsel’s final report can be released to the public.  Notably, the letter’s lead signatory is Congressman Jamie Raskin (D-MD), the Ranking Member on the House Judiciary Committee. By virtue of his role on the Judiciary Committee, Raskin is one of four congressional leaders who would be allowed to participate in a closed-door review of Vol. 2—if Judge Cannon lifts her temporary injunction, that is.

At this, the judge interjects: How does the Jan. 15 letter play into your argument?

Woodward says the letter suggests, first, that the legislative branch thinks the cases against Nauta and De Oliveira should be dismissed. And, second, it indicates that Congressman Raskin has “every” intention of speaking about the contents of the report publicly. The court can have “zero” confidence that Raskin or other members of Congress will not disclose information contained in the report, he asserts.

Judge Cannon observes aloud that the Justice Department has discussed requiring members of congress who review the report to agree to conditions of confidentiality. Are you familiar with the details of any proposed confidentiality agreement? she asks. 

Woodward says yes, he’s familiar with the details contained in the government’s brief in opposition, which sets out the conditions the Justice Department would implement to safeguard the confidentiality of the report. Among other conditions, the filing states that members of Congress would only be allowed to review the contents of the report under the supervision of a Justice Department official, and they must agree to keep the report’s findings confidential.

Woodward, however, says these precautions aren’t sufficient to prevent the disclosure of information. The problem, he tells the judge, is that confidentiality assurances do nothing to prevent members of Congress from “walking onto the House floor” to disclose the contents of the report. He’s alluding to the Constitution’s Speech or Debate Clause, which immunizes legislators from for official legislative acts. If a member of Congress bucked a confidentiality agreement by disclosing information about the report during a speech on the House floor, the clause would almost certainly shield him or her from criminal prosecution or civil litigation related to that disclosure.

All of which is why Woodward tells Judge Cannon that there’s “nothing” the court could do to police a breach of confidentiality in such circumstances. 

In response to this argument, Judge Cannon plays devil’s advocate. I think the argument on the other side would be that the remedy for improper dissemination might take the form of a post-conviction motion related to prejudicial pretrial publicity, she muses aloud. 

Woodward, for his part, pushes back on this suggestion. This isn’t a situation in which we should wait and see what damage is done, he says. Why should this court wait and see when it can prevent the prejudice now?

Judge Cannon, apparently satisfied with this answer, moves on.  Turning to historical precedent, she asks Woodward if he’s aware of any situations in which a special counsel’s final report was released to Congress prior to the conclusion of a criminal case that was initiated during the investigation.

After claiming that he’s not aware of any such precedent, Woodward then shifts his focus back to Rule 6(e). We are “far from confident” that 6(e) is being complied with, he reiterates.  We think we should have a “line by line” opportunity to review the report for potential grand jury materials, he continues, and then we need to come back here and have a hearing on what exactly should be redacted.

Next, Judge Cannon returns to the subject of Congress. In its filings, the Justice Department argued that allowing in camera review of Vol. 2 would facilitate Congress’s ability to legislate “wisely and effectively” while also exercising its oversight of Executive Branch agencies. The judge, however, doesn’t sound convinced of this argument as she fires off a series of questions about Congress’s interest in the final report: Has there been any formal request by these members of Congress? Is there any pending legislation regarding special counsels? Is there anything pertinent to review by these specified members?

No, no, and no, Woodward replies.

With that, Woodward is done. Elizabeth Shapiro strides to the lectern to argue on behalf of the Justice Department.

When she arrives at the lectern, Shapiro kicks off by acknowledging, as Woodward did earlier, that there is “very little” dispute between the parties regarding the release of the report. The Attorney General, at the recommendation of Special Counsel Jack Smith, determined that Vol. 2 should not be released to the public during the pendency of the appeal in Nauta and De Oliveira’s cases. The only “small slice” of outstanding disagreement between the parties is whether the remaining volume of the report should be made available for a closed-door review by four members of congress.

To that end, Shapiro emphasizes that congressional leaders must agree to abide by certain confidentiality conditions as a prerequisite to viewing the report. Namely, she says, they cannot bring electronic devices or share information with staff members; they cannot take notes from the room; and they must agree to keep any information in the report confidential for the duration of the pending cases.

At this point, Judge Cannon jumps in to inquire about whether there has been any “formal” request to view the report by the four specified members of Congress. 

As I understand it, Shapiro says carefully, there have been several requests. But a subpoena has not been issued, she adds. 

And on what basis? Judge Cannon asks. Why would Congress be interested in the special counsel’s report?

In response, Shapiro refers Judge Cannon to a footnote in the Justice Department’s brief in opposition, which explains that Congress has “recently, on multiple occasions, taken the position that it has a particularized interest in information about Special Counsel investigations, in order to consider possible legislative reforms.…”

Judge Cannon presses her to point to an example of a scenario in which a special counsel report was released to Congress prior to the conclusion of the criminal process.

Shapiro retorts that she does have such an example. She points out that Special Counsel David Weiss, who was appointed to investigate Hunter Biden, testified before a congressional committee during the pendency of that prosecution.

Did Congress issue any subpoenas or formal requests for testimony in that instance? Judge Cannon inquires. 

Shapiro affirms that it did.

Judge Cannon, who seems to be increasingly agitated, wonders aloud about the “urgency” to release the report for review by members of Congress. Why now? she asks.

In reply, Shapiro cites the “historical practice” of special counsels sending reports to Congress, as well as Garland’s commitment to release such reports at the “appropriate time.”

At this, Judge Cannon pounces: That’s the key phrase, she says. “Appropriate time.” That’s the concern—that this request is premature while there is a pending appeal before the Eleventh Circuit. Why does this need to be released now? she queries for the second time.

Again, Shapiro cites “historical practice” and Garland’s commitment to transparency. She adds that Garland has a desire to see those objectives “satisfied” during his tenure in office. 

You refer to his “practice,” Judge Cannon shoots back, but past special counsel reports have awaited a moment of “finality.” And of course, in this case, we await a decision from a higher court, she observes. 

Shapiro tries to change tack, emphasizing that what’s at stake isn’t the public “release” of a special counsel report. It’s an ex parte review, she emphasizes. What’s more, Shapiro says, I would note that this is an effort to enjoin a decision by the attorney general regarding the department’s interactions with Congress. 

Now Judge Cannon turns to the question of remedies should the report “leak.” Do you agree that there is nothing this court could ever do if somehow this report leaks? she inquires. 

Shapiro reminds the judge that members of Congress will not receive a physical copy of the report, meaning that there is virtually no chance the report would “leak.” While the defense argues that members of Congress could get on the House floor and characterize the report in some way, Shapiro contends that there are countervailing incentives to safeguard against that possibility. There is little “incentive” for a congressperson to disclose information in such a manner because of the need to maintain the practice of confidential information sharing between the two branches of government, she says. If members of Congress break that confidence, they know they won’t be able to obtain confidential information from the Executive Branch to assist their legislative activities in the future.

Judge Cannon is having none of it. So, in the meantime, the defense just has to wait and hope that there aren’t any leaks? she muses aloud. Then, for a third time, she presses Shapiro to answer the question at the top of her mind: Why now?

To Judge Cannon’s dissatisfaction, Shapiro responds as she did twice before, citing “historical practice,” the Attorney General’s commitment to transparency, and Garland’s desire to carry out those objectives during his “limited” time remaining in office. 

Then, pivoting back to the remedies question raised by the judge moments ago, Shapiro adds that there are “all kinds” of mechanisms to remedy potential prejudice to the defendants should members of Congress “leak” information regarding the report. She rattles off a list of such mechanisms: Jury questionnaires, voir dire, or even dismissal of the indictment.

Judge Cannon then shifts to Rule 6(e). Do you wish to respond to defense counsel’s arguments regarding potential 6(e) material contained in the report? she asks.

Shapiro says that the government does not believe that the redacted version of the report contains any grand jury material that would be prohibited from public disclosure under Rule 6(e). And prosecutors regularly screen for 6(e) material all the time, she tells the judge. 

Judge Cannon interrupts: But when there’s a disagreement between the parties regarding the application of 6(e), a court usually has authority to review, she says. What’s more, she continues, in this instance, the defense hasn’t had a “meaningful” opportunity for input on the matter.

Next, Judge Cannon quizzes Shapiro on the scope of 6(e). She presents a hypothetical in which the government obtains toll records by means of a grand jury subpoena. If those toll records are given to a law enforcement agent, who then testifies to the content of the records before a grand jury, is that 6(e) material?

Shapiro replies that it’s not 6(e) material if those toll records are not identified as being presented before the grand jury.

Judge Cannon asks whether Shapiro was involved in redacting 6(e) material in the report.

No, I wasn’t, replies Shapiro.

Well, asks Judge Cannon, who in the Justice Department is authorized to speak with authority about these factual questions regarding how material contained in the report was obtained?

Despite having proclaimed months earlier that Smith’s appointment was unconstitutional, and despite having been apprised of the fact that Smith completed his work and resigned his post last week, Judge Cannon now seems perturbed by the absence of Smith and the representatives from his office. 

Turning from the subject of grand jury material to classified information, Judge Cannon queries whether there is any such information contained in the report. No, Shapiro affirms, it’s her understanding that neither version of the report contains any classified information.

 Judge Cannon follows up by asking whether any intelligence agencies have “reviewed” and “ensured” that the report contains no classified information. In this case, the judge explains, we have taken “great pains” to ensure that classified information remains so. So, I’m looking for something more concrete, she says. 

Next, Judge Cannon turns to attorney-client privileged information. Her review of the redacted version of Vol. 2 suggests that it contains information for which the President-elect at least asserted attorney-client privilege, she says. 

In reply, Shapiro says that she is not prepared at this time to answer whether the report contains any such information. But she can find out, she adds.

Now Shapiro is done, and Woodward returns to the lectern for a brief rebuttal. He addresses, first, the “precedent” cited by Shapiro related to Special Counsel David Weiss’s testimony before a congressional committee. Weiss, Woodward claims, was subpoenaed by Congress during “preliminary impeachment proceedings” against President Joe Biden. And when Weiss did testify, Woodward says, he refused to testify about matters related to the investigation.

Further, Woodward continues, my colleagues on the other side cannot cite any real reason why this can’t wait. For that reason, he concludes, we ask that the Justice Department be enjoined from releasing the report.

Having wrapped up the argument on Nauta and De Oliveira’s emergency motion, Judge Cannon next invites John Lauro to the lectern to present argument on Trump’s motion to intervene. 

To justify intervention in a criminal case, a third-party must usually show that the resolution of a motion “implicates” his constitutional or federal statutory rights. So it’s no surprise that Lauro, now at the lectern, starts by arguing that Nauta and De Oliveira’s motion to block dissemination of the report implicates Trump’s personal and institutional interests.

First, with respect to Trump’s personal rights and interests, Lauro acknowledges that his client, unlike Nauta and De Oliveira, is not a party to the pending appeal before the Eleventh Circuit. That’s because the Justice Department voluntarily dismissed its criminal appeal against Trump following his election as president. Still, Lauro observes, the government has characterized its dismissal as “without prejudice” as to Trump, meaning that it could be revived at some point in the future. For that reason, he says, Trump is similarly situated to his co-defendants who remain part of the pending Eleventh Circuit appeal.

Before Lauro can address Trump’s institutional concerns, Judge Cannon asks whether there’s anything else for her to consider beyond the “spectre of a revived prosecution.”

Yes, Lauro replies. He indicates that Trump shares his co-defendants’ concerns about 6(e) material in the report, and that there are reputational interests at stake. Additionally, Lauro complains that it would be “unprecedented” for the Justice Department to release a special counsel report after dismissing a criminal case.

Disclosing the report to Congress is the equivalent of public dissemination, Lauro stresses. Any one of the four members of Congress who would review the report could get on the House floor, release information from the document, and be protected by the Speech or Debate Clause, he says. He asserts that it is “incomprehensible” that the prosecution would take that risk.

Judge Cannon returns to the question of attorney-client privilege, asking Lauro whether the redacted version of Vol. 2 contains any information for which Trump asserted attorney-client privilege.

Lauro—who until today primarily worked on Trump’s Jan. 6 case in Washington, D.C.—says he would have to consult with his colleagues on that. He hasn’t had an opportunity to review for attorney-client privilege, he says. 

Then Lauro turns to the “institutional” interests he mentioned earlier. Currently, he says, the President-elect needs to focus on the presidential transition and not deal with the Justice Department engaging in activities that are contrary to “everything” it stands for. 

Judge Cannon, in a rare moment of disagreement with Trump’s lawyers, doesn’t sound persuaded by this aspect of Lauro’s argument. I’m concerned your position is “too broad,” she says.

The judge turns to the topic of the Jan. 15 letter Congressman Raskin and others sent to Garland. What do you make of the Raskin letter?

Lauro replies that the letter does not constitute a “formal” request. It’s an “after the fact” request and there’s no subpoena compelling release of the report to Congress, he contends.

Then Lauro wraps up his argument on the motion to intervene by “itemizing,” at Judge Cannon’s request, which of Trump’s constitutional rights and interests are “implicated” by the motion to enjoin disclosure of the report. He ticks off a list of such interests, which include due process, fair trial rights, Rule 6(e), the Vesting Clause, and the Presidential Transition Act.

Before the defense attorney returns to his seat, Judge Cannon asks if the Presidential Transition Act has ever been substantively litigated. I don’t think so, Lauro replies.

Lauro is done, and Shapiro hurries to the lectern to argue on behalf of the government. She tells Judge Cannon that she has “little” to say about the motion to intervene because Trump’s reply brief acknowledges that the relief he seeks is identical to the relief being sought by his former co-defendants. For that reason, intervention is unnecessary. She contends that Trump’s arguments on the matter may be accepted by the court in the form of an amicus brief, to which the government does not object. 

Judge Cannon asks Shapiro about Lauro’s argument that Trump’s rights as a criminal defendant are implicated because the criminal case against him could be revived in the future. Does it make a difference that the government dismissed the case without prejudice, so conceivably the charges could be brought again?

Shapiro says she can’t speak to the question of whether the charges could be brought again. A prosecutor would have to consider a number of factors, including potential statute of limitations issues.

Judge Cannon tries again. Is the Justice Department to this day not ruling out a future prosecution of President-elect Trump?

Shapiro again replies that she’s unable to speak to whether it is or not. She doesn’t know.

So, it’s uncertain, Judge Cannon summarily concludes.

As Shapiro walks back to her seat, Judge Cannon asks whether the parties have anything to add for the record. Lauro pops up, telling the judge that he would appreciate an additional opportunity to brief the merits of the motion if the court is inclined to grant Trump’s motion to intervene. Then Woodward rises to his feet to announce that the defense team is prepared to “highlight” specific contents of the report that warrant further consideration during a sealed session. 

The government, for its part, has nothing further to add.

With that, the public hearing is over, and Judge Cannon orders the court cleared of members of the press and public.  Then, following a recess, the parties meet for a brief closed-door session to discuss the contents of the report.

With 24 hours to go until Trump is inaugurated as the 47th president of the United States, Judge Cannon has yet to rule on the matter.