U.S. District Judge Aileen Cannon blocked the Justice Department from allowing a small, bipartisan group of legislators to review Jack Smith’s findings on Donald Trump’s stash of classified documents at Mar-a-Lago by claiming such a disclosure was unprecedented.
“Never before has the Department of Justice, prior to the conclusion of criminal proceedings against a defendant — and absent a litigation-specific reason as appropriate in the case itself — sought to disclose outside the Department a report prepared by a Special Counsel containing substantive and voluminous case information. Until now,” Cannon wrote in her order on Tuesday.
She is wrong.
The Department of Justice did exactly that with one of its most recent special counsels — during an investigation of Trump.
Former FBI director Robert Mueller’s Trump-Russia investigation lasted two years and ended when he closed the office in late May 2019. But the DOJ released his 448-page report, which carefully laid out the many threads they investigated and hurdles they encountered, more than a month earlier on April 18.
At the time the Mueller report was released publicly, the Justice Department was still in the midst of pursuing a case against Republican adviser Roger Stone for lying to investigators and prosecuting the Russian-backed Internet Research Agency over its role in meddling in the 2016 U.S. presidential election. And while Trump associate Paul Manafort had just been sentenced to prison, the feds were still trying to seize his New York apartment.
By contrast, the recently departed Attorney General Merrick Garland had intended to show Volume 2 of Smith’s report to only four people: Reps. Jim Jordan and Jamie Raskin and Sens. Chuck Grassley and Dick Durbin, respectively the top two members of the House and Senate judiciary committees. The meeting would be behind closed doors at DOJ headquarters, where the four would not be allowed to take a copy, jot down notes or bring their own staff members.
Cannon intervened, saying that the Justice Department would be wrong to release any information before the courts finish adjudicating Trump aide Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira.
In her scathing 14-page order, Cannon criticized the DOJ for stressing that Garland had “limited time” left in office — an apparent reference to the possibility that Trump’s administration could bury the report indefinitely.
“These statements do not reflect well on the Department,” she wrote. “There is no ‘historical practice’ of providing Special Counsel reports to Congress, even on a limited basis, pending conclusion of criminal proceedings. In fact, there is not one instance of this happening until now.”
Cannon’s ruling was again incorrect on this front.
When the Mueller report was made public — after Sen. Ted Cruz and others called for its release — federal prosecutors were still actively pursuing cases that were described in the report. And although much of that report was redacted, journalists familiar with the investigations were quickly able to discern many of the missing names and details.
The Mueller report was made public seven months before Stone faced trial. And court records show that his legal team actually used its release to bolster its request that the government turn over more information lawyers could use to defend him at trial. What’s more, Stone’s own lawyers had requested the final report weeks earlier.
A second example comes from the case of Manafort, the political consultant who enriched himself by advising pro-Russian Ukranians and later became Trump’s 2016 campaign chair. His legal troubles were still in motion when then-Attorney General Bill Barr released the entire Mueller report. The previous day, U.S. District Judge Amy Berman Jackson had issued an order explaining that Manafort had violated his plea agreement by lying to investigators and a grand jury.
A third example is a case against the Russian entities for illegally spending money in an attempt to influence U.S. elections. The indictment, which was then only a year old, named two companies run by a Putin confidante-turned-enemy, Yevgeny Prigozhin, who has since been killed after taking part in a failed armed rebellion inside Russia.
“Interference,” a memoir written by three prosecutors who led on Mueller’s team, explained how investigators presenting the case in court “ran into the ‘graymail problem,’” described as “when a defendant essentially forces the government to trim, if not abandon, its case by forcing the disclosure of sensitive and potentially classified information through the discovery process.” The case has largely remained dormant in federal court.
The Russian case does provide something of a counterexample, however, given that the judge overseeing those proceedings ultimately warned the Department of Justice it shouldn’t have released that much extraneous information about the investigation without first getting permission from the court.
American lawyers for the indicted Russian companies had asked U.S. District Judge Dabney L. Friedrich to punish Barr and Mueller by holding them in contempt for “releasing prohibited information” they claimed was “interfering with Concord’s right to a fair trial.” The judge declined to hold them in contempt but warned that “any future violations … will trigger a range of potential sanctions.”
At the time, Friedrich ripped into the DOJ for making “prejudicial” statements because “they provided an opinion about the defendants’ guilt and the strength of the evidence.”
That means the DOJ is technically already on notice to be careful not to violate that local D.C. federal court rule, which has a similar version in the Southern District of Florida where the Mar-a-Lago case is being litigated.
Regardless, the future of the DOJ’s cases are on shaky ground. It’s not clear whether the incoming DOJ will continue to pursue the case. And Trump has shown he’s willing to pardon his allies — as he did with Manafort and Stone.
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Jose Pagliery is a reporter at NOTUS.