Lawless Cannon orders DOJ to tell her about Jack Smith's January 6 report

The order from the Florida federal judge who dismissed the special counsel's case against Donald Trump is lawless for at least three reasons.

[UPDATE, 2:00 p..m. Sunday: The Justice Department, without waiving its objection that Cannon lacks jurisdiction currently, responded as ordered on Sunday morning, telling Cannon the none of Volume One of the special counsel’s report addresses Nauta or De Oliveira or their charges. The documents case is referenced twice in Volume One, though, so DOJ is providing “the relevant text in a sealed filing.“ As of 2:00 p.m., neither Cannon nor the U.S. Court of Appeals for the Eleventh Circuit have taken any further action.]

On Saturday afternoon, U.S. District Judge Aileen Cannon issued an order purporting to require the Justice Department to tell her about a report in the possession of Attorney General Merrick Garland regarding a case not before her — and to do so by 10 a.m. Sunday.

The order from Cannon — a Trump appointee from the final year of his first administration who I called “Trump’s best lawyer in years” back in 2022 — is lawless for at least three reasons.

Saturday’s order comes out of Waltine Nauta and Carlos De Oliveira’s effort to stop the release of the final report issued by Special Counsel Jack Smith — who resigned Friday after submitting his report to Garland earlier in the week.

Nauta and De Oliveira were charged in Smith’s investigation into Trump’s retention of classified documents after leaving office in 2021. Although Cannon dismissed the charges against them, as well as Trump, because she found that Smith was unconstitutionally appointed, an appeal of that decision remains pending at the U.S. Court of Appeals for the Eleventh Circuit as to Nauta and De Oliveira.

As to the report, Smith and Justice Department lawyers had told Cannon that the report would contain two volumes: Volume One would relate to Smith’s January 6, 2021, investigation and the D.C. federal case Smith brought, and Volume Two would relate to the classified documents case he brought before Cannon. Moreover, they told Cannon that Garland intended only to make Volume One public at this time.

On January 7, Cannon issued a temporary injunction purporting to block the release of the “Final Report” outside the Justice Department until three days after the Eleventh Circuit resolved Nauta and De Oliveira’s separate request in that court to block the report’s release. Her order did not distinguish between the volumes, and DOJ took that to mean that she was purporting to block release of any of the report.

On January 9, the Eleventh Circuit denied Nauta and De Oliveira’s request.

Since then, there have been a few filings that preceded Saturday’s order, but I will raise them as appropriate below.

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So, what are the problems with Cannon’s Saturday order?

First, and as the Justice Department made abundantly clear to Cannon in a filing earlier Saturday: Cannon does not have jurisdiction to issue this order at this time.

This Court, however, is prohibited from hearing the merits of Defendants’ motion for emergency relief. The Court has already granted injunctive relief that has temporarily prohibited the Department from releasing the Final Report, and an appeal challenging the lawfulness of that order is currently pending before the Eleventh Circuit. Accordingly, the relief Defendants now seek directly implicates “the same aspects of the case involved in the appeal,” Coinbase, 599 U.S. at 740, and this Court lacks jurisdiction to resolve Defendants’ motion.

The Justice Department filed its notice of appeal of Cannon’s January 7 order on January 9, shortly after the Eleventh Circuit issued its order. That notice divested Cannon of jurisdiction. Then, shortly after midnight on Saturday, the Justice Department filed its motion at the Eleventh Circuit asking the appeals court to reverse Cannon’s temporary injunction.

DOJ’s lawyers went on to discuss arguments raised by Nauta and De Oliveira about jurisdiction, including noting that the Eleventh Circuit itself contemplated an appeal in its order, and then concluded:

Regardless, whether appellate jurisdiction exists is a question for the Eleventh Circuit to decide. Unless and until the Eleventh Circuit finds appellate jurisdiction lacking and its mandate issues, this Court lacks jurisdiction over matters encompassed within the appeal.

Cannon lacked authority to issue the order she issued Saturday.

Second, Cannon does not have authority to issue this order as to the January 6, 2021, case report.

Despite lacking jurisdiction since the night of January 9, Nauta and De Oliveira filed a motion before Cannon on January 10, asking her to extend her temporary injunction.

As DOJ noted in its Saturday filing, which was responding to that request but laid out several important broad principles at stake here, “[W]ith respect to Volume One of the Final Report, Defendants resemble any other member of the public.“

Later, DOJ’s lawyers added:

Whatever authority a district court might have to enjoin the release of information about a criminal case pending before that court, it has no authority to block the release of information about a different case against a different defendant in a different court.

Despite all of that, Cannon on Saturday asked for information about Volume One of the report. Specifically, she ordered DOJ to tell her “whether Volume One of the Final Report directly or indirectly refers, relies, or bears in any respect upon any evidence or argument relevant to any of the charges alleged against Defendants Nauta and De Oliveira in this case.” She then added that DOJ should consider whether this is so “understood liberally.” It’s been an overwhelming request given the timeline and a request made with no basis in law.

Again, Cannon lacked the authority to issue the order she issued on Saturday.

Finally, and taking a step back, Cannon had no authority to issue the initial temporary injunction in the first place as to Garland and has no authority to seek additional information about the contents of the report that now sits with Garland.

As DOJ laid out on Saturday, even assuming that Cannon was right that Smith has been unconstitutionally appointed — something DOJ does not concede — that would provide no basis for Cannon restricting Garland’s actions:

To repeat, Cannon lacked authority to issue the order she issued Saturday.

A final note, and a bit of irony. Although Cannon appears to be fighting vigorously and lawlessly to keep the Volume One of the report from being made public, it is she who has now ordered the Justice Department to potentially share parts of the report outside of the Justice Department, stating that DOJ must “file a corresponding sealed, non-ex parte supplement with particularized details, by the same deadline,” if any of Volume One of the report — “liberally understood” — “directly or indirectly refers, relies, or bears in any respect upon any evidence or argument relevant to any of the charges alleged against Defendants Nauta and De Oliveira in this case.“

The question now is what Garland; the Eleventh Circuit; and, if necessary, the Supreme Court or, if it comes to it, President Biden do about it.