Appeals Court Pressed to Intervene as Dispute Erupts Over Release of Special Counsel’s Mar-a-Lago Report

ATLANTA — A rare and extraordinary legal maneuver is now before the U.S. Court of Appeals for the 11th Circuit, where a First Amendment advocacy group is urging judges to prevent the potential destruction of Volume II of former Special Counsel Jack Smith’s report — a document detailing the abandoned criminal prosecution of President Donald Trump over his handling of classified materials at Mar-a-Lago.

At the center of the dispute is U.S. District Judge Eileen M. Cannon of the Southern District of Florida, who last year dismissed the classified documents case against Mr. Trump on the grounds that Mr. Smith’s appointment as special counsel was unconstitutional — a ruling that broke with the consensus of other federal courts and was widely criticized by legal scholars across the ideological spectrum.

Although Mr. Trump’s subsequent election effectively ended the government’s appeal of that dismissal, one unresolved issue remains: whether Volume II of Mr. Smith’s final report, addressing the Mar-a-Lago investigation, will ever be released to the public.

Now, with the Department of Justice under new leadership appointed by Mr. Trump, the question has taken on fresh urgency — and an unsettling twist.

A Report in Limbo

Special counsel regulations require that a final report explaining prosecutorial decisions be submitted to the attorney general at the conclusion of an investigation. Historically, such reports — including those by Robert S. Mueller III and John H. Durham — have been released publicly, with redactions for classified or sensitive material.

Volume I of Mr. Smith’s report, addressing Mr. Trump’s conduct related to January 6, 2021, has already been transmitted and partially disclosed. Volume II, however, concerns allegations that Mr. Trump retained highly sensitive national security documents at his Florida estate after leaving office and obstructed federal efforts to recover them.

According to the original indictment, the materials included defense information, intelligence assessments and documents marked at the highest levels of classification. Prosecutors also alleged that Mr. Trump directed aides to move boxes to evade a federal subpoena and misled investigators.

Judge Cannon dismissed the case before trial, holding that the special counsel’s appointment violated the Appointments Clause of the Constitution. Her decision was an outlier; no other court considering similar challenges to special counsels has reached the same conclusion.

After Mr. Trump’s return to office, the Justice Department dropped its appeal, citing longstanding policy against prosecuting a sitting president. That left Judge Cannon with authority over the remaining case materials, including Mr. Smith’s unreleased report.

For more than a year, however, she took no action.

Calls for Destruction

In recent filings, lawyers for Mr. Trump, acting in his private capacity, have urged Judge Cannon not merely to withhold the report but to order its destruction. Attorneys for Walt Nauta, Mr. Trump’s former aide and co-defendant, have gone further, arguing that the report and related materials should be “incinerated” or otherwise permanently eliminated.

The Justice Department — which would traditionally defend the release of a special counsel’s report as a matter of public accountability — has not opposed those requests.

That alignment has alarmed transparency advocates. The Knight First Amendment Institute at Columbia University filed a motion seeking to intervene in the district court proceedings, arguing that the public has a First Amendment and common-law right of access to judicial records.

When Judge Cannon did not rule on that motion, the institute petitioned the 11th Circuit for a writ of mandamus — an extraordinary judicial remedy asking a higher court to compel action or prevent what it views as a grave abuse of discretion.

The petition warns that if Judge Cannon orders the destruction of the report and the Justice Department complies immediately, appellate review could become meaningless. Once destroyed, the document could not be restored.

An Unusual Legal Posture

Legal experts describe the situation as highly unusual.

“Our system depends on adversarial presentation,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general. “The Justice Department is supposed to represent the public’s interest in transparency and lawful process. Here, you have the government and the former defendant aligned in seeking suppression — even destruction — of a report that would normally be disclosed with appropriate redactions.”

Mandamus relief is rarely granted. Petitioners must show not only that they have no adequate alternative remedy but also that their right to relief is “clear and indisputable.” The 11th Circuit could conclude that, because Judge Cannon has not yet ruled on the motion to intervene or ordered destruction, the matter is premature.

Yet the institute argues that waiting for a final order could render any appeal moot.

The 11th Circuit has previously rebuked Judge Cannon in related proceedings. In 2022, it overturned her decision to appoint a special master to review materials seized from Mar-a-Lago, describing her reasoning as legally flawed.

Whether that history will influence the court now remains unclear.

Historical Stakes

Beyond the technical procedural dispute lies a broader question: how democracies record and confront alleged misconduct by powerful officials.

Mr. Trump has repeatedly characterized the Mar-a-Lago investigation as a political attack and has suggested publicly that Mr. Smith’s report would vindicate him. If so, some legal scholars note, release of the document would offer an opportunity for rebuttal and public debate.

“This isn’t just about a case file,” said Amanda Shanor, a First Amendment scholar at the University of Pennsylvania Carey Law School. “It’s about the historical record. When prosecutions are halted for reasons unrelated to the merits — here, because of a presidential election — the special counsel report becomes the primary mechanism for public accountability.”

In authoritarian systems, historians often note, official narratives replace contested evidence. In the United States, by contrast, transparency in high-profile investigations has long been viewed as essential to democratic legitimacy.

Even critics of the special counsel system have generally supported public disclosure of reports, subject to redactions protecting classified information and grand jury secrecy.

What Happens Next

The 11th Circuit could respond in several ways. It might deny the petition outright as premature. It could order expedited briefing. Or it could issue a limited administrative stay, instructing Judge Cannon not to authorize destruction pending further review.

Any decision would likely be closely scrutinized, given the political sensitivities and the court’s prior involvement in the case.

If Volume II is ultimately released, portions would almost certainly be redacted to protect classified material and intelligence sources. But its narrative conclusions — detailing evidence gathered and prosecutorial reasoning — could shape public understanding of one of the most consequential investigations in modern American history.

If it is not released — or worse, destroyed — critics warn that a significant chapter in the legal and political saga surrounding Mr. Trump may remain permanently obscured.

For now, the document’s fate rests with a panel of appellate judges weighing not only procedural doctrine but the larger principles of transparency and historical accountability that undergird the federal judiciary.

The court has not indicated when it will rule.