Garland Seeks To Trample Due Process Rights To Get Trump

The release of the special counsel report by the attorney general would severely prejudice the due process rights of the individuals identified in that report, a brief filed late Saturday in a Florida federal court argued. All eyes now rest on Judge Aileen Cannon’s docket to see how she responds to this weekend’s bombshell filing.

The flurry of court filings began exactly one week ago when Waltine Nauta and Carlos De Oliveira filed two emergency motions to enjoin the release of the special counsel’s report. Special Counsel Jack Smith had indicted Nauta, De Oliveira, and Trump in the Southern District of Florida for alleged crimes related to Trump’s retention of classified documents. 

Last year, presiding judge Aileen Cannon dismissed the charges, holding Jack Smith was unconstitutionally appointed special counsel and lacked authority to prosecute the alleged crimes. The government appealed Judge Cannon’s dismissal of the indictment to the Eleventh Circuit Court of Appeals, but following Trump’s election, the DOJ dismissed its appeal. However, the DOJ’s appeal remains pending against Nauta and De Oliveira, leaving them in legal jeopardy.

Accordingly, last Monday, the two defendants asked both Judge Cannon and the Eleventh Circuit to enjoin the release of the special counsel report. The Defendants filed two separate — but nearly identical — motions, one in each court, given the uncertainty concerning which court might conclude it had jurisdiction over the matter.

The strange procedural posture of the case and uniqueness of the issues led Judge Cannon to likewise adopt a cautious approach to the motion: Judge Cannon entered a temporary injunction barring release of the special counsel report pending the Eleventh Circuit’s ruling and for three days thereafter, unless the Eleventh Circuit directed otherwise.

In the Eleventh Circuit, the DOJ opposed the injunction and argued the appellate court should reverse Judge Cannon’s injunction. While the federal appellate court denied Nauta and De Oliveira’s Moton for an Injunction, it provided no explanation for its reasoning. The Eleventh Circuit also refused to reverse Judge Cannon’s injunction, stating instead that the DOJ could file a notice of appeal if it wanted to challenge her injunction.

Not receiving the ruling it wanted, the DOJ went berserk: It immediately filed a Notice of Appeal in the lower court but then filed an improper “Notice” to the Eleventh Circuit which, in substance, argued that the Eleventh Circuit screwed up and that it needed to immediately reverse Judge Cannon’s three-day injunction. After the defendants moved to strike that improper court “notice,” the DOJ doubled down, filing at 12:30 a.m. on Saturday an Emergency Motion for Summary for Reversal of Judge Cannon’s injunction. With Judge Cannon’s injunction set to expire on Monday, there was clearly no emergency that required the DOJ to file a weekend motion while the appellate court was closed.

In reality, what the DOJ wanted was the Eleventh Circuit to rewrite its opinion and hold that Judge Cannon lacked the authority to enter an injunction. While it is always possible the Eleventh Circuit will follow the DOJ’s lead, it is unlikely as it would be very poor form for a federal court of appeals to, in essence, rehear a case based on an improperly filed “notice” where the government ignored the procedures in place for requesting a rehearing.

Consequently, and absent a contrary ruling from the Eleventh Circuit, the ball is back in Judge Cannon’s court, which is why on Friday, Nauta and De Oliveira immediately filed a further motion in the lower court. In that motion, Nauta and De Oliveira asked Judge Cannon to further enjoin the release of the Special Counsel’s report, pending resolution of the DOJ’s appeal on the issue, or alternatively pending a hearing and ruling on its Motion for an Injunction.

By Saturday, the DOJ had responded, opposing any additional injunction. In that response, the DOJ stressed that only Volume II of the special counsel report discussed Nauta and De Oliveira and that the AG had already agreed not to publicly release that portion of the report while the criminal case remained ongoing against the two defendants. However, as to Volume I, which concerned an investigation into the 2020 election and certification, the DOJ argued Nauta and De Oliveira had no basis to challenge the release of that portion of the Special Counsel report.

Judge Cannon entered a brief order Saturday evening directing the DOJ to file a statement concerning whether Volume I contained any reference to Nauta and De Oliveira. That order further noted the court was cognizant that several issues remained pending, including Trump’s Motion to Intervene and Nauta and De Oliveira’s motion seeking to extend the injunction.

Then, late Saturday, Harry MacDougal, the attorney for former Trump Administration DOJ attorney Jeff Clark, filed an emergency motion on behalf of Clark seeking leave to file an amicus brief or alternatively joining in Trump’s Motion to Intervene. Significantly, that Motion also sought a four-day administrative stay to extend the injunction to allow for the Court to consider the merits of the arguments.

And the merits are substantial: As Clark’s proposed amicus curiae, or friend of the court brief, stressed, the DOJ’s decision to “voluntarily holding back on publication of volume 2” because of the pending criminal case against Nauta and De Oliveira, likewise compels the conclusion that the DOJ should be barred from releasing Volume I.

There is “an exactly analogous prejudice” to Clark, his attorney argued, adding that the prejudice is actually “compounded because Mr. Clark faces jeopardy in two cases and not just one, . . . ” Specifically, Volume I “would severely prejudice Mr. Clark’s due process rights in two separate pending and directly related proceedings,” namely the Fulton County criminal case originally launched by the disqualified (and disgraced) DA Fani Willis, against Clark and dozens of other defendants in Georgia state court. Second, as Clark’s attorney argued, the lawfare extends beyond the criminal indictments to various bar disciplinary proceedings, such as the one against Clark currently pending before the D.C. Bar’s Board of Professional Responsibility.

Here, Clark’s lawyer stressed that the due process injury flowing from the release of Volume I extends much beyond his client:

Clark is not the only one who might suffer this concentration of prejudices. Multiple individuals described in either the original or superseding indictments in the Election case are also facing related criminal prosecution in one or more States, and/or related bar disciplinary proceedings, to include attorneys John Eastman, Rudy Giuliani, Ken Chesebro, and Sidney Powell, but also non-attorneys former White House Chief of Staff Mark Meadows, Michael Roman, and possibly others. Their rights to due process would also be violated by the publication of any report describing their conduct, and this violation would be accompanied by the same panoply of violations of the Special Counsel regulations and rules of professional responsibility.

The release of Volume I also risks violating Trump’s due process rights, and here Clark’s attorney noted an important, but yet overlooked, point: The DOJ in dismissing charges against Trump related to the 2020 election did so without prejudice, meaning that after Trump leaves office, he still risks prosecution. 

Trump, for his part, has asked Judge Cannon to enjoin the release of the entire Special Counsel report. The president-elect has also sought to intervene in the case. And now Clark has joined that motion. Further, and significantly, Clark explains that should the Court determine such intervention is inappropriate, Clark will then file a civil complaint against the DOJ within four days, with Clark requesting the court enter a four-day administrative stay to maintain the injunction in the interim.

Given that Clark has now made known the substantial due process injury the release of Volume I will cause to him and potentially dozens of other Americans, it would be outrageous for AG Garland to continue to push for its release. But given the lawfare he has allowed to occur under his watch, it wouldn’t be surprising.

Stay tuned for updates throughout the day at @ProfMJCleveland.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.