DOJ can’t release Biden tapes while hiding Jack Smith report

The Knight First Amendment Institute at Columbia University and American Oversight filed a brief with the U.S. Court of Appeals for the 11th Circuit on Tuesday challenging U.S. District Judge Aileen Cannon’s permanent injunction that bars the report’s release, according to Kaelan Deese writing in Washington Examiner.

The organizations argue that neither the Justice Department nor President Donald Trump’s legal team has provided adequate justification for overriding the public’s right to access the Smith report, which concerns the investigation into Trump’s handling of classified documents.

The legal challenge comes just as nearly 70 hours of audio recordings from Biden’s conversations with his ghostwriter, Mark Zwonitzer, were made public following a two-year legal battle. The recordings, which featured prominently in former special counsel Robert Hur’s investigation into Biden’s classified documents handling, include Biden discussing material he believed may have been classified.

The Biden administration had vigorously fought to prevent the release of those tapes for nearly two years. However, after Biden left office, the Trump Justice Department reversed its position on Freedom of Information Act disclosures and Privacy Act protections for uncharged investigative materials. Biden filed a lawsuit in May challenging the department’s reversal but ultimately lost at both the federal district and appeals court levels in Washington, D.C.

After the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 against him earlier this month, Biden dropped his appeal. That decision paved the way for the conservative Oversight Project’s victory on Monday in Heritage v. U.S. Department of Justice, resulting in the release of the previously shielded interview tapes.

The plaintiffs seeking Smith’s report release pointed directly to that ruling in a footnote in their brief, asking the 11th Circuit to revisit Cannon’s order. The Washington appeals court found the public has a significant interest in scrutinizing special counsel investigations, even when they do not result in criminal charges.

American Oversight, a left-leaning organization known for targeting Trump with open records requests, argues that the public interest is even stronger in the Smith case because prosecutors actually charged Trump and two co-defendants before the case was ultimately dismissed.

Judge’s Controversial Ruling Blocking Smith Report

Cannon, a Trump appointee, first blocked the Biden-era Justice Department from releasing Smith’s Volume II report in January of last year, just days after Trump returned to office. The order was intended to protect the fair-trial rights of Trump associates Walt Nauta and Carlos De Oliveira, who were charged alongside Trump in the classified documents case.

The case against Trump had already been dismissed in July 2024 after Cannon ruled Smith’s appointment was unlawful. The remaining charges against Nauta and De Oliveira later collapsed as well following Trump’s return to the Oval Office.

Despite the case’s dismissal, Cannon made the injunction permanent in February, ruling that releasing the report would violate basic notions of fairness and justice because the defendants were never convicted. She also cited concerns about grand jury secrecy and attorney-client material.

The current Justice Department, Trump, Nauta, and De Oliveira have all opposed disclosure. America First Legal Foundation, in a March amicus brief supporting Cannon’s ruling, argued that releasing the report after the prosecution’s collapse would be unfair and would improperly publicize untested allegations from Smith’s investigation.

Trump has repeatedly denied wrongdoing and has described Smith’s Mar-a-Lago investigation, including the FBI’s 2022 search of his Florida residence, as politically motivated.

With information from Washington Examiner