President Donald Trump‘s Republican allies in Congress, eager to help him rewrite the history of criminal investigations into his conduct after he lost the 2020 election, might have inadvertently offered us all a path to transparency about some of his alleged lawlessness.
Jack Smith, the special counsel appointed in 2022 to investigate Trump’s attempts to overturn the 2020 election and his hoarding of classified documents at his Florida mansion, detailed his team’s work in two volumes earlier this year.
Volume I, about the aftermath of the 2020 election, was released two weeks before Trump was inaugurated in January, after the indictment against him was dropped at Smith’s request following the 2024 election. The Department of Justice’s protocols say presidents can’t be prosecuted while in office.
Volume II, about the classified documents he took home after losing that election, has been kept under wraps by the same federal judge in Florida who dismissed the criminal case against him last year.
U.S. District Judge Aileen Cannon, nominated to the bench by Trump during his first term in 2020, had a well-documented history of slow-walking legal proceedings against him when his criminal case was still active.
She’s back at it. Again.
And the 11th Circuit Court of Appeals, not exactly a bastion of liberal jurisprudence, has noticed. Again.
Trump’s allies are fighting to keep Jack Smith’s report in the dark
A three-judge panel from that appellate court in 2022 scolded Cannon for giving Trump legal cover that other criminal defendants don’t get. Now, another three-judge panel from the 11th Circuit has ordered Cannon to take action on long-pending requests for her to drop her gag order and release Smith’s Volume II report.
Those judges, in a Nov. 3 order, knocked Cannon for “undue delay” and gave her 60 days to act on requests from American Oversight and the Knight First Amendment Institute.
Those two nonprofits, which work on free speech and access to government records, sought relief from the 11th Circuit in September after had Cannon ignored them for nearly seven months.
Given Cannon’s obvious sympathetic leanings toward Trump, here’s how that is likely to play out. She could wait until the last minute, again, and rule in the first week of January that her gag order stays in place. Then American Oversight and the Knight First Amendment Institute would have to appeal that ruling to the 11th Circuit.
In short, it could take a very long time for the 11th Circuit to decide if we get to see Volume II. And Trump, who always tries to delay this sort of thing, could appeal to the U.S. Supreme Court if the 11th Circuit lifts Cannon’s gag order.
That’s where Trump’s Republican allies in Congress come in, probably in a way they weren’t planning on.
U.S. Rep. Jim Jordan, the Ohio Republican who chairs the House Committee on the Judiciary, in an Oct. 14 letter to Smith, demanded that he testify in a private interview. U.S. Sen. Chuck Grassley, the Iowa Republican who chairs the Senate Committee on the Judiciary, also wants Smith to testify.
Smith, in an Oct. 23 letter to Jordan and Grassley from his lawyers, jumped at the chance to talk. But with a few conditions. The former special counsel said he needed “guidance” from the Department of Justice about disclosing federal grand jury information, including Volume II, because that has not been made public.
Republicans will have to answer: What do they have to hide?
Smith wants his testimony “in an open hearing,” not closed-door interviews. Democrats in the House and the Senate seized on that request, joining Smith’s call for transparency.
And that’s what could short-circuit Cannon’s attempts to stymie the public release of Smith’s Volume II.
Republicans in the House and Senate will have to answer in public if they insist on Smith testifying in private. It’s fair to ask them, what do they have to hide? If they want answers, why keep them secret?
Scott Wilkens, senior counsel at the Knight First Amendment Institute, told me that Smith’s potential testimony in public about Volume II might speed the process of getting it released.
“If Jack Smith is permitted to disclose information that’s in Volume II in Congress, that would be another way for the public to gain this information, and faster than we may get it in the judicial process,” Wilkens said. “That’s very important to the public interest in Volume II.”
A person familiar with the back-and-forth among Smith, the Department of Justice and Republicans in Congress told me that Smith has not heard if he’ll get guidance about what he can disclose from Volume II and whether that testimony will happen in public.
Republicans in Congress want to put Smith under a microscope, in private. But Smith is maneuvering to corner them in their own game, very much in public.
This could also take months to play out, with Smith and Democrats demanding transparency about Trump’s actions, all during the run-up to the midterm elections in November 2026.
Trump, who sees Democratic victories in those midterms as an existential threat to his presidency, will be furious if any actual transparency muddles his attempts to rewrite his own history. The real story about his behavior after the 2020 election, which we all saw, is not at all what Trump wants to revisit.
But how can his Republican allies, who claim to want to revisit Smith’s investigations in the name of justice, refuse to actually visit in public the very source material that details those probes?
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