Judge Cannon’s Flawed Order to Suppress Jack Smith’s Report on the Mar-a-Lago Documents Caper

Federal courts do not actually have sweeping ‘supervisory authority’ over the DOJ.

This is the first of two columns on what is shaping up as a battle by President Trump and his Justice Department to discredit as illegitimate the Biden Justice Department’s two criminal prosecutions of Trump — the Mar-a-Lago documents case and the January 6 case, which involved the 2020 presidential election. The controversy crystallized this past week when Judge Aileen Cannon, a Trump appointee, forbade the Justice Department from disclosing Biden DOJ Special Counsel Jack Smith’s final report on the Mar-a-Lago investigation.

J udge Aileen Cannon, the Trump appointee to the federal district court in South Florida who presided over and eventually dismissed felony charges against Donald Trump in the Mar-a-Lago classified-documents case, has granted the now-president’s motion to bar the Justice Department from publicizing the final report submitted by prosecutor Jack Smith. The ruling was made in a 15-page order Judge Cannon issued on Monday.

It is a poorly reasoned decision that is sure to be challenged if Democrats take control of one or both houses of Congress and issue a subpoena demanding production of the report.

I am not saying President Trump’s attorney general — Pam Bondi, or whoever it might be in the future when the inevitable controversy arises — would necessarily be wrong if she refused to disclose the report to Congress. To the contrary, I think the attorney general would have a very colorable argument: Smith’s final report is an internal Justice Department memorandum explaining exercises of prosecutorial discretion, which are the unilateral constitutional prerogatives of the executive branch and lie beyond the power of Congress or the courts to undo. To be sure, there are good reasons why Bondi should disclose the report, or perhaps be compelled to do so if it is subpoenaed by Congress. We’ll come to why.

My point is only that federal courts do not have the sweeping “supervisory authority” over the Justice Department that Judge Cannon claims.

The Trump DOJ’s contortions are also worth noting. Whenever judges order federal prosecutors to refrain from taking actions that the president wants taken, Trump and Bondi resort to calumny, branding the judges radical Marxists, unpatriotic, an embarrassment to their families, and so on. Here, though, where Cannon has ordered the Trump DOJ to refrain from doing something the president is delighted to have the court purport to forbid, the administration lauds her — even though she is usurping executive authority.

Judge Cannon’s Rationale

Cannon offers two rationales for her ruling. First, she dismissed the indictment against the now-president upon concluding that Smith’s special counsel appointment by Biden Attorney General Merrick Garland violated the Constitution’s appointments clause (a ruling Garland could easily have worked around, salvaging Smith’s work, but instead made the futile decision to fight in an appeal that, predictably, was never resolved). From the premise of this dismissal, Cannon rationalizes that all actions Smith took, including preparation of the final report, must have been ultra vires (which, perhaps coincidentally, is the administration’s line).

Second, Cannon claims that all the investigative information compiled in Smith’s report constitutes discovery material in the criminal case. As such, so the theory goes, all fruits of the investigation remain under the control of a protective order that Cannon issued back in June 2023, shortly after the initial indictment was filed. She maintains this position even though there is no longer an active case against Trump and his two co-defendants.

To understand why the judge is off base, we need to recap some history.

Smith’s Appointment and the Legitimacy of the Investigation

On November 8, 2022, President Biden’s attorney general, Merrick Garland, appointed Smith as special counsel. It would be seven months before he’d file charges in the Mar-a-Lago case, and another two months before he’d indict the so-called January 6 (J6) case involving Trump’s misconduct in connection with the 2020 election.

Throughout that time, when Smith was conducting grand jury proceedings and in contact with Trump’s defense lawyers, no one challenged Smith’s appointment as special counsel. That was not done until much later, during pretrial motions in the Mar-a-Lago case. Indeed, challenging Smith’s legitimacy was such an afterthought that Trump’s team never got around to filing an appointments clause motion in the J6 case.

Specifically, when pretrial motions were litigated before Judge Cannon in 2024, Trump’s defense piggy-backed on the work of conservative legal scholars in raising the appointments clause issue. That work was subsequently bolstered by Justice Clarence Thomas in a concurring opinion in the Supreme Court’s 2024 presidential immunity ruling; although the appointments clause issue was extraneous to any issue in the immunity case, Justice Thomas’s concurrence profoundly influenced Judge Cannon’s 93-page ruling, issued just two weeks later.

But note: For about a year before Smith was appointed, the Biden DOJ was already investigating Trump’s retention of classified documents at Mar-a-Lago and whether he had obstructed the probe. Once Smith was appointed, it was nearly another two years before Cannon finally ruled that his appointment was unconstitutional. For nearly all that time, even though Trump made many complaints about the Biden DOJ and, later, Smith, neither his defense lawyers nor Judge Cannon suggested that the prosecutors’ probe was somehow tainted by the manner of Smith’s appointment.

In fact, before Cannon took the drastic step of dismissing the indictment, she implored the Justice Department to take technical remedial steps that would have cured the constitutional defect and allowed the charges to stand — such as placing Smith under the supervision of Biden’s duly appointed U.S. attorney in South Florida. The Biden DOJ declined to do that. I’ve long maintained that this was a miscalculation, but Garland had his reasons. He believed Smith’s appointment was valid and didn’t want to concede error. Further, he knew that such a concession in the Mar-a-Lago cases would enable Trump’s team to call into question the validity of Smith’s separate J6 case. The Supreme Court was already concerned about that case due to immunity claims, so Garland would not have wanted to flag other potential problems (although, as we’ve seen, Justice Thomas seized on the appointments clause issue anyway). Plus, the presiding judge in the J6 case was Obama appointee Tanya Chutkan; the Biden DOJ was confident that she would rule in the government’s favor on any appointments claim.

Here’s the central point: If Smith’s investigative actions had really been illegitimate, Trump’s team would have aggressively contested them as they were happening. A truly fundamental defect would not have been curable by merely bringing Smith and his team under a local U.S. attorney’s purview.

During all that time, no one acted as if Smith and his staff were not legitimate prosecutors. Trump’s team would fight the ultimate case, but not Smith’s authority to conduct an investigation.

Other Relevant Background

Let’s back up. In June 2023, Smith indicted Trump and Mar-a-Lago employee Waltine Nauta on various charges involving mishandling of national defense information and obstruction. Carlos De Oliveira was subsequently added as a co-defendant in a superseding indictment.

Thirteen months later, in July 2024, Cannon granted the defendants’ motion to dismiss the indictment based on what she agreed was Smith’s unconstitutional appointment. Garland had appointed Smith under Justice Department regulations. Construing the Constitution’s appointments clause (art. II, §2, cl. 2), Cannon concluded that the position he occupied required, instead, either appointment under a congressional statute or nomination by the president and confirmation by the Senate. Smith satisfied neither condition.

The Justice Department appealed to the Eleventh Circuit but dropped its appeal as to Trump after he won the 2024 election. This was in compliance with longstanding DOJ guidance that a sitting president may not be prosecuted. After Trump took office in January 2025, his Justice Department dismissed the appeal as to Nauta and De Oliveira.

At that point, then, there was no longer a case or controversy. That is, the minimum jurisdictional requirement for a judge to take action was lacking.

The Special Counsel’s Final Report

In the interim, Smith prepared final reports in connection with both the Mar-a-Lago and J6 cases.

Saliently, a special counsel’s final report is not a judicial proceeding. In fact, some special prosecutors do not file charges at all — for example, Robert Mueller in the Trump-Russia “collusion” investigation. In such probes, the court has no role (except to the extent the special counsel resorts to grand jury proceedings or warrants to conduct searches or make arrests). The court has only limited authority to make decisions about disclosure of the Justice Department’s investigative files in connection with a judicial case — the prosecution that follows after formal charges have been filed.

The special counsel’s final report is an internal Justice Department memorandum, required to be submitted by the special counsel to the attorney general. (See Section 600.8.) Under the same set of regulations (specifically, Section 600.9), it is then up to the attorney general — not a court — to determine whether to make all or part of the report public.

Invariably, attorneys general have released final special counsel reports to the public, redacting both grand jury information (which is secret by statute) and information that could compromise pending DOJ investigations. Such redactions are permitted: The regulations instruct the attorney general to comply with “applicable legal restrictions.” While the application of those restrictions could be the subject of lawsuits, the disclosure of the report itself is an act of executive discretion — not a judicial proceeding.

What’s more, regardless of whether the special counsel who prepared the report was properly appointed, the attorney general can direct any Justice Department prosecutor to prepare a report outlining an investigation and explaining charging decisions. Smith had a staff of prosecutors assigned to him by the Biden DOJ; their authority to conduct investigations and prosecutions was incontestable, even if Smith’s own appointment to supervise them was on shaky ground. (Compare our discussion of Bilal Essayli, Trump’s non-confirmed U.S. attorney in Los Angeles: Even though his appointment was ruled invalid, a court refused to dismiss indictments filed by his subordinates because they had undeniably legitimate prosecutorial authority.)

In the next column, we’ll look at Smith’s final special counsel reports, why the Mar-a-Lago report was withheld when the J6 report was made public, the Trump DOJ’s motivation for keeping the Mar-a-Lago report under wraps, and whether Congress could challenge Judge Cannon’s ruling and thereby force disclosure of the report.