A number of people on Bluesky asked for a Dummies version of my post unpacking the request, from some number of current and former FBI personnel, for Judge Aileen Cannon to clarify her gag order regarding the Jack Smith report on the stolen documents case. So here it is, just like NYT does.
At its most basic level, this filing asks Judge Cannon to please put the rules for her gag order on the Jack Smith report in writing, because right now DOJ is applying those rules inconsistently. If these current and former FBI personnel get the rules wrong, their attorneys say, they could go to prison, either because DOJ holds them in contempt of a subpoena or because she’ll hold them in contempt of her gag order.
As noted, this filing was written by lawyers for some number of current and former FBI personnel (both agents and analysts) who have knowledge of the stolen documents case.
A bunch of outlets are reporting that this motion was written on behalf of five FBI personnel, perhaps because there are five attorney firms listed on the filing. But I don’t think that’s clear, starting from the fact that just one of the attorneys, Allison Duffie, is barred in Southern District of Florida. The others indicate they’re going to submit Pro Hac Vice filings (requests to practice in the district for this matter) later, and they will all presumably apply through Duffie.
Plus, the language of the filing seems to deliberately obscure how many clients the filing is speaking for, using words like “each” that suggest there are just a few but also using words like “many” suggesting there could be a bunch. Because both Margaret Donovan and Mark Zaid, two of the lawyers on the filing, represent a shit-ton of government employees, that flexible usage may serve to include both specific clients who received subpoenas on September 21 to testify in coming weeks and those, including those who might be targets of the investigation, who otherwise might be affected by the gag.
As it is, there could be as few as three people subpoenaed, and one of those people is not represented by these lawyers. Two people who are these lawyers’ clients are described specifically:
The confusion in Cannon’s gag order arises from her effort to make it expansive as possible.
Judge Cannon’s jurisdiction over the Jack Smith report arose out of her role presiding over the prosecution of Trump’s stolen documents case. After she ruled that Jack Smith was unlawfully appointed, she ruled that he should never have written a report and, at the request of first Trump and then Walt Nauta and Carlos de Oliveira, she said no one could disseminate it — not within DOJ, not outside DOJ, not in response to a subpoena, not to the public.
Her jurisdiction shouldn’t extend to stuff that happened before Jack Smith was appointed on November 18, 2022, which includes all the things that led up to the search of Mar-a-Lago, but also the period when Trump tried to claw back everything seized in the search. These FBI personnel are being asked about that period — the stuff that led up to and included the search on August 8, 2022.
But Cannon wrote her order — no doubt in an effort to gag the entirety of the investigation — to cover “any information” that appears in the report on the stolen document case. And much of what would be covered by these subpoenas — things like interview reports done before the search and analysis of the documents Trump returned in January 2022 and then in response to a subpoena in June 2022 — would be included in that.
No. The filing points to three instances where DOJ has applied rules to Jack Smith material differently than (these lawyers claim) they are applying by demanding testimony from these current and former FBI personnel. Those three instances are:
In all those cases, DOJ said even stuff from the search (which is, again, what Zaid FOIAed for) was implicated by Cannon’s order. But they have told potential witnesses not to worry about that: for reasons DOJ refuses to explain, the rules are different here.
We don’t know. That’s part of the problem with Cannonball, when you don’t apply rules consistently and don’t publicly post how you’ve applied the rules in the past (as with Jack Smith’s testimony).
But one likely explanation has to do with the two hats Aileen Cannon is wearing. As explained above, she has jurisdiction over the Jack Smith report because she presided over the attempt to prosecute Trump for stealing boxes of classified documents. That’s the role she plays for the docket in which this filing was submitted.
She also has another role: presiding over the grand jury investigation into what people call The Grand Conspiracy, which is basically an attempt to criminalize being mean to Donald Trump, which for MAGAts means applying the law to him like it applies to everyone else. The Grand Conspiracy imagines that investigations into Trump or the Russians who helped him, starting in 2016 and continuing through the attempt to recover nuclear documents being stored in a gaudy bathroom, were not attempts to protect the United States but instead a conspiracy to be mean to Donald Trump. The goal of the Grand Conspiracy investigation is to use conspiracy law as a means to bypass statutes of limitation to claim everyone who had any role in being mean to Donald Trump (by holding him accountable under the law like everyone else) is a criminal.
The reason why Cannon is overseeing this grand jury is an important detail. Trump has tried to criminalize being mean to him before, most notably with the John Durham investigation, which led to acquittals for two guys implicated in Hillary Clinton’s 2016 campaign and no charges for either Hillary or people like Jim Comey. Trump’s flunkies took from those acquittals and non-charges not that the evidence doesn’t support their claim that being mean to Donald Trump is a crime, but that judges and juries in DC and Northern Virginia simply didn’t twist the rules in the way they should have.
Trump’s flunkies have decided that the reason past attempts like Durham’s to jail people for complaining that Donald Trump gleefully accepted Russian help to get elected in 2016 didn’t work is because the investigations were conducted in Washington DC, where (they claim) the judges are all rabid Democrats. Even the Republicans. Even the four Trump appointees. Especially the two Chief Judges — first, Beryl Howell and then (and now) James “Jeb” Boasberg — who oversaw grand jury investigations operating out of DC from 2016 to the present.
So the solution to their claimed belief that it’s not that the facts and evidence don’t support Trump’s claim that being mean to him is a crime, but the judges were just wrong, Trump’s flunkies found a theory to conduct a grand jury investigation before a judge — Cannon — who has demonstrated her willingness to apply the law in just the way most useful to Trump. They did that by saying the crime — the ultimate search of Mar-a-Lago, happened in Fort Pierce, and so it must be investigated there. Since Cannon is the only judge in that courthouse, she gets to be in charge.
Here’s one thing most people don’t get: usually, when you challenge a subpoena, you have to go to the judge who is overseeing the grand jury investigation (in this case, Cannon), but do it in secret.
There’s an exceedingly good chance that after these lawyers filed this public filing in the stolen document docket, they did file a challenge, secretly, before Cannon, because without that challenge, one of their clients will be in contempt of a subpoena this week (and another will be next week).
Indeed, though the attorneys who are not barred in Florida said they would file PHV to be admitted, they have not done so yet … at least not publicly. Maybe they did in a grand jury-related docket.
But by filing the complaint about the rules on her gag order publicly, effectively treating two-hatted Aileen as two separate people, we all get to see it and others who haven’t received a subpoena can rely on anything coming out of it.
The filing says that even if prosecutors give the lawyers’ clients immunity, Aileen Cannon’s past order still presents a problem, because the clients are at risk for being held in contempt by her (for violating the gag order) or by DOJ (for blowing off a subpoena).
This argument is, on the one hand, true (in theory at least). But also a good way to point out the problem Aileen’s two hats creates. To immunize these witnesses, DOJ would need Cannon’s permission. But that would put Cannon in a position of having to rule against her own order. She would and will probably do that. But in doing so, she’ll prove she cares more about being on the same side as Trump than she does about judicial ethics and separation of powers.
This is another way the filing points out Aileen’s two hats (which match Todd Blanche’s two hats). The subpoena lists which crimes the grand jury, overseen by Aileen Cannon, are investigating, which are two different conspiracies against someone’s rights. Remember: Trump’s people are arguing that holding Trump accountable to the law (or being mean to him) is a crime. But what the law actually prohibits is not holding him to the law, but taking away his rights.
And both these conspiracy laws require that someone intend to violate someone’s rights. But, with regards to the search of Mar-a-Lago, whether FBI personnel did violate his rights or not has already been litigated — that happened back in September 2022 when Trump tried to ask for all his stuff back. And the Eleventh Circuit already said that the FBI personnel did everything by the book, in fact showed a great deal of care before they did the search.
This is an argument that should be in the secret challenge to subpoenas before Aileen in her other hat (and maybe it is). It’s an argument about why nobody — least of all Aileen Cannon — should be approving subpoenas based on the theory that FBI personnel violated Trump’s rights, much less intended to, much less in Florida, because that question has already been adjudicated and the Eleventh Circuit said it didn’t happen.
This may also be in secret filings. But it is in a public filing so everyone knows that Aileen wearing her grand jury hat is being called out for ignoring what the Eleventh Circuit told her while she was wearing her Trump prosecution hat.
Aileen Cannon can just refuse this motion to intervene, like she has refused motions to intervene from NGOs trying to liberate the report. But if she does that, then these FBI personnel can appeal that decision, just like those NGOs did.
And it’s not clear whether Cannon can just shove this back into the other docket where she’s wearing her other hat.
Update: Below, half assed Steven explains where the number five came from:
Between July and August 2026, undersigned counsel were contacted by representatives of the FBI’s Miami Field Office in order to schedule “voluntary interviews” of five specific Clients in support of what was described as an ongoing criminal investigation in this district related to purported violations of 18 U.S.C. §§ 241 and 242, Conspiracy Against Rights and Deprivation of Rights Under Color of Law, respectively.
Even there there is ambiguity: Just “several” of the attorneys on this filing joined a meeting about those five. And that was before two changes in approach, first the decision to pull such interview requests, and then Joe DiGenova’s departure.
The post Cannonball: Aileen Cannon Wears Two Hats! appeared first on emptywheel.