The Justice Department’s successful push to release former President Joe Biden’s private memoir tapes is undercutting the Trump administration’s effort to keep former special counsel Jack Smith’s classified documents report under seal, a First Amendment watchdog argued Tuesday.
The Knight First Amendment Institute at Columbia University and American Oversight filed a brief to the U.S. Court of Appeals for the 11th Circuit to overturn U.S. District Judge Aileen Cannon’s permanent injunction barring the report’s release. The groups said neither the DOJ nor President Donald Trump’s legal team, which both seek to keep the report under wraps, has justified why the public’s right of access should be overridden.
Former Justice Department special counsel Jack Smith testifies before the House Judiciary Committee.
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Former Justice Department special counsel Jack Smith testifies before the House Judiciary Committee at the Capitol in Washington, Thursday, Jan. 22, 2026. (AP Photo/Mark Schiefelbein)
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Former Justice Department special counsel Jack Smith testifies before the House Judiciary Committee at the Capitol in Washington, Thursday, Jan. 22, 2026. (AP Photo/Mark Schiefelbein)
“The government has not argued that the public’s right of access has been overcome here,” attorneys for the free speech advocacy group wrote in its reply brief, urging the appeals court not to allow Smith’s Volume II report to remain permanently sealed without that showing.
The filing comes as nearly 70 hours of audio recordings from Biden’s conversations with his ghostwriter, Mark Zwonitzer, became public following a two-year legal fight. The recordings, cited in former special counsel Robert Hur’s investigation into Biden’s handling of classified documents, include Biden discussing material he believed may have been classified.
The Biden administration had fought for nearly two years to block their release, but after leaving office, the Trump DOJ reversed its litigation position regarding Freedom of Information Act disclosures and Privacy Act protections for uncharged investigative materials. Biden later filed a lawsuit in May challenging the department’s reversal.
Biden ultimately lost at both the federal district and appeals court in Washington, D.C., and he dropped his appeal after the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 against him this month. That move helped set the stage 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 the release of Smith’s report pointed to that ruling in a footnote in their brief, asking the U.S. Court of Appeals for the 11th Circuit to revisit Cannon’s order shielding Smith’s report. The appeal is part of litigation in the 11th Circuit over whether Cannon’s injunction can stand.
A passage from the Knight First Amendment Institute’s 11th Circuit brief citing the Biden memoir-tapes ruling in support of releasing Jack Smith’s classified-documents report.
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A passage from the Knight First Amendment Institute’s 11th Circuit brief citing the Biden memoir tapes ruling in support of releasing Jack Smith’s classified documents report.
“If the government does not oppose that motion, and the court grants it, that information, no matter its public import, will remain forever hidden because there is no avenue for a third party to challenge the order,” the group wrote, calling the Biden tapes litigation “curiously familiar.”
The Washington appeals court found the public has a “weighty” and “significant” interest in scrutinizing special counsel investigations, even when they do not result in charges.
American Oversight, a left-of-center group known for targeting Trump with open records requests, asserts that the public interest is even stronger in the Smith case because prosecutors charged Trump and two co-defendants before the case was ultimately dismissed.
The lawsuit challenging judge’s permanent order to block Smith’s report
Cannon, an appointee of Trump, first blocked the Biden-era DOJ from releasing Smith’s Volume II report in January last year, days after Trump returned to office. The order was designed 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 with Trump’s return to the Oval Office.
Still, 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 DOJ, 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.
Smith’s report subject of recently indicted former prosecutor
The continued secrecy of Volume II gained renewed attention after a former federal prosecutor was indicted in May on charges alleging she downloaded and emailed herself a copy of the report.
BIDEN GHOSTWRITER TAPES RELEASED AFTER FORMER PRESIDENT FORFEITS LEGAL BATTLE
Carmen Lineberger, formerly a managing assistant U.S. attorney in the Southern District of Florida, is accused of saving the report under the file name “Bundt_Cake_Recipe.pdf” before allegedly sending it from her DOJ account to a personal email. She has pleaded not guilty. The indictment does not allege whether Lineberger intended to distribute the document.
The 11th Circuit has not said when it will rule on the transparency groups’ appeal.
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[ H/T Washington Examiner ]
