Aileen Cannon’s Obstruction of Jack Smith’s Report Is Literally Lawless

Mark Joseph Stern / Slate

The judge has absolutely no power to stop the release of this document.

Over the past few years, U.S. District Judge Aileen Cannon has issued some wildly indefensible decisions in favor of Donald Trump, the president who appointed her. She singlehandedly stymied the investigation into the president-elect’s theft of classified documents, and effectively abetted his obstruction of the Justice Department’s probe into that alleged crime. And yet these past interventions are still arguably less galling than Cannon’s latest salvo: a brief order, issued on Tuesday, blocking the Justice Department from releasing special counsel Jack Smith’s two-volume report on his investigation into Trump. Her order is fundamentally lawless—not even in a debatable sense, but objectively just outside the law. Cannon literally has no authority to impose this injunction, and has not bothered to explain why she thinks she does. It is a fitting finale to her ignominious reign over the prosecution that she ruthlessly suppressed.

This final battle in U.S. v. Trump is especially perverse because the president-elect has already evaded Smith’s charges by winning reelection. Having gotten away with the alleged crimes in question, he now demands even more: to conceal the details of Smith’s investigation from the American people. Here’s how the process would normally go, under Justice Department regulations: The special counsel compiles a report explaining his prosecutorial decisions, and the attorney general decides whether to release it to the public. Smith is currently finalizing his two-volume report; one volume focuses on the election subversion case handled by a federal judge in D.C., while the other details the classified documents case overseen by Cannon. Attorney General Merrick Garland intends to release a portion of his work before Jan. 20.

Trump is, understandably, eager to quash the entire report. But he won’t be president again for nearly two weeks, so he enlisted his favorite judge for one last assist. The president-elect urged Cannon to bar the report’s release to the public. His former co-defendants, who still face criminal charges, made the same request to Cannon, and to the 11th U.S. Circuit Court of Appeals, where their case is now pending. (More on that in a moment.) But Trump and his co-defendants asked Cannon to jump ahead of the 11th Circuit and muzzle the Justice Department herself. She obliged on Tuesday, issuing a sweeping injunction that attempts to prohibit Garland, Smith, and the whole agency from publishing the final report or any drafts of it.

Here’s the problem: Cannon cannot do this. The startling breadth of her order is extremely dubious, but the legal flaw runs even deeper; she is purporting to exercise authority that she just does not have. That’s because Cannon no longer holds jurisdiction over this case; she has relinquished it to the 11th Circuit, which has thus far declined to issue the very relief that she granted. She therefore lacks any power to interfere with the Justice Department’s release of Smith’s report.

Jurisdiction is the bedrock of a federal court’s power. With it, they can decide cases and enforce judgments; without it, they lack constitutional authority to do anything. Typically, when courts seek to render judgments, they first explain why they have jurisdiction over the case and the parties, to confirm that they are acting constitutionally. Cannon skipped over this step in her order on Tuesday, as if it were obvious that she could intervene. But the opposite is true: It is obvious that she cannot intervene.

Why? As the Supreme Court recently explained, an appeal strips a district court of jurisdiction over a case. When a party appeals, the district court loses all control “over those aspects of the case involved in the appeal.” And right now, the only aspect of the case that could plausibly give Cannon authority to block the report is on appeal to the 11th Circuit. That aspect is her ruling, back in July, that Smith was unconstitutionally appointed, and could not continue prosecuting the case. Smith appealed that ruling, and his appeal stripped Cannon of jurisdiction to issue any further orders related to her decision under review. That includes the new claim, raised by Trump and his co-defendants, that Smith’s allegedly unconstitutional appointment precludes the release of his report.

And here’s the kicker: Trump and the co-defendants have already asked the 11th Circuit, which does have jurisdiction, to halt the report, and it can act whenever it chooses. Cannon leapt ahead of the higher court, ostensibly “to prevent irreparable harm” to the co-defendants. But that decision was the 11th Circuit’s to make, not Cannon’s. The judge asserted that she was merely seeking to “preserve the status quo” while waiting for the appeals court to act. This false pose of modesty, though, cannot disguise the fact that she had no lawful basis to act in the first place.

There are several other jurisdictional defects in Cannon’s order that render it even more outrageous. As my colleague Shirin Ali pointed out, it is not at all clear that the judge can forbid Garland from releasing the report, since he is not party to the case. Nor is it evident where Cannon would even derive the power to meddle with the Justice Department’s operations on such a granular level: Even if Smith were unlawfully appointed, it does not follow that he is somehow prohibited from writing and sharing a report about his experience. It certainly makes no sense—and, indeed, raises serious constitutional concerns—to gag Garland, the duly appointed attorney general, from publishing work produced by his agency.

Moreover, Smith’s report is two volumes, and only one pertains to the classified document case; the other describes the election subversion case overseen by U.S. District Judge Tanya Chutkan in D.C. Yet Cannon blocked the Justice Department from releasing both volumes. From where does she derive the power to suppress the volume about Chutkan’s case, over which she has no jurisdiction? She did not say.

On a political level, it makes perfect sense that Cannon would run interference for Trump yet again. She has tried to kill this prosecution at every turn, first obstructing the Justice Department’s investigation by attempting to seize control over its probe in a series of error-ridden opinions that were swiftly overturned. She then slow-walked the prosecution before throwing it out altogether in a profoundly flawed decision that flouted Supreme Court precedent. The judge has acted much more like an advocate for Trump than a neutral arbiter, and she now has a vested interest in shielding the president-elect—whom she has essentially treated like a client—from a damning public report.

On Wednesday, the Justice Department indicated that it might never release the volume of Smith’s report about the classified documents case in an apparent bid to salvage the other volume’s publication. Inauguration Day, though, is less than two weeks away. A jurist as shameless as Cannon has plenty of tools left at her disposal to run out the clock, keeping the entire report on ice until Trump comes in and buries it for good.