I noted in this post that Aileen Cannon had issued secret orders in the motion to intervene filed by some unknown number of FBI agents.
The former purpose appears to be proceeding apace, in secret.
After Donovan and Lowell filed their motion to intervene, Judge Cannon issued a snotty order, claiming they had not conferred with the government on the filing. On October 7, Donovan and Lowell resubmitted their motion, along with a complete Certificate of Conference. And according to a successful DOJ request to delay an Eleventh Circuit hearing on liberating the Jack Smith report, Cannon ordered briefing for October 21 and 28.
On October 7, current and former Federal Bureau of Investigation (“FBI”) agents involved in the underlying criminal investigation that led to these proceedings filed a new motion to intervene in the District Court, seeking permission to both disclose and publicly discuss non-public information covered by the District Court’s February 23, 2026, Order prohibiting the release of Volume II. That motion raises significant issues overlapping with arguments made in these appeals, including those concerning the availability of intervention in criminal proceedings and Article III standing. Defendants-Appellees must now respond to that motion by October 21, with further briefing scheduled through October 28, just days before the currently scheduled November 2 oral argument.
Either Cannon has sealed the public docket, or DOJ just revealed secret information from a grand jury docket, violating grand jury secrecy.
But that motion for clarification is proceeding, in secret.
On Friday October 16, DOJ public responded to Cannon’s secret order, which response was due by October 21, in Trump’s criminal docket. They largely dodged the legal issue by claiming that the search of Mar-a-Lago which the 11th Circuit ruled was legal was instead illegal and then, later, invoking a precedent that says grand jury witnesses may not dodge testimony because a search was illegal.
[L]ike any other witness subpoenaed for a grand jury investigation, will “suffer” no more than the short-lived uncertainty as to what they may be questioned about related to their involvement in the illegal investigation of President Trump’s Mar-a-Lago residence.
[snip]
The Supreme Court has also stressed that secrecy prevents interference with ongoing investigations. Allowing outside legal challenges or defenses to intrude on questioning “would unduly interfere with the effective and expeditious discharge of the grand jury’s duties.” United States v. Calandra, 414 U.S. 338, 349–50 (1974). The grand jury must operate swiftly, independently, and without adversarial litigation or external influence. See id. But here, this is exactly what the Witnesses’ counsel devises to do: impede the independence and confidentiality of grand jury proceedings yet to occur. This Court should not allow any free sneak previews or negotiations about what the grand jury may or should ask.1
1 Finally, the Witnesses assert that the Department’s interpretation of the Protective Order is “inconsistent.” Motion, p. 7. Yet the Witnesses offer no support for this assertion—because there is none. The scope of the Order is clear, and the Department’s interpretation of its application remains consistent. [See ECF No. 779, pp. 14–15]. Any disclosure or dissemination of Volume II or its drafts, or any nonpublic information or conclusions in Volume II or its drafts, outside the Department of Justice, would implicate the prohibitions of this Court’s Order. [ECF No. 779, pp. 14–15].
Their claim that testimony is inconsistent is ridiculous — but I’m sure Judge Cannon will applaud it.
And then they argue that the witnesses cannot ask for such clarification until they suffer an injury — for example, by being held in contempt by DOJ.
But the Witnesses compound the audacity of these requests: They lasso their jurisdictional interest on an illusory future “injury” lacking any basis in law. See Motion, pp. 3–4. They insist the Court must “clarif[y] the application of the Order to their upcoming grand jury testimony,” because their “imminent injury” is “‘likely [going to be] caused by’” Department of Justice officials asking them, “questions pertaining to information in Volume II of the report, which may or may not fall within the scope of the [Protective] Order.” Motion, pp. 3–4 (emphasis added) (citation omitted). And this speculative “injury”— which may or may not happen—they theorize, may or may not “forc[e] them to make the difficult choice” among facing “(1) possible contempt of the Order; (2) not providing full, unconstrained testimony to the grand jury in order to comply with the terms of the Order; or (3) invoking their Fifth Amendment right not to incriminate themselves.” Motion, p. 3.
Three illusions cannot make an injury.
Under Article III of the Constitution, for a genuine case or controversy, a party must show he or she has suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). A “threatened injury must be certainly impending to constitute injury in fact,” and “‘[a]llegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). Parties “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 416 (emphasis added). Witnesses’ bases for standing—no matter how creative—should be dismissed for lack of jurisdiction.
Just the first italicized “may or may not,” above, is from the FBI witnesses. Here’s what that passage from the motion to intervene looks like:
They are likely to be asked questions pertaining to information in Volume Il of the report, which may or may not fall within the scope of the Order, forcing them to make the difficult choice between: (1) possible contempt of the Order; (2) not providing full, unconstrained testimony to the grand jury in order to comply with the terms of the Order; or (3) invoking their Fifth Amendment right not to incriminate themselves. The first two options bear possible punitive consequences, while the third creates ‘unnecessary negative optics for innocent former federal civil servants who are said to be witnesses yet may be perceived as withholding information simply due to the need to protect themselves from being held in contempt:
And the “may or may not” is not about what prosecutors might ask. It’s about Aileen Cannon’s Cannonball.
At the very least, this challenge may have caused a delay in testimony. The motion to intervene described three subpoena recipients (one of whom is not represented by the lawyers on the motion), one scheduled for
One individual was subpoenaed for testimony during the week of September 28, 2026; two others (including an individual represented by separate counsel) have been scheduled for the following week.
Those dates have come and gone, yet DOJ describes that, “The scheduled dates and times for their requested testimonies have not yet occurred.”
It seems like a big gimmick: To adopt a position for DOJ (Acting Deputy Attorney General Trent McCotter, who reports to Todd Blanche, is among the DOJ personnel who signed the filing) that is inconsistent, even, with what Todd Blanche has said and judges in both SDFL and the 11th Circuit have said, so that these witnesses will be exposed to contempt one way or another.
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