Three years ago this month, the Justice Department indicted Donald Trump under the Espionage Act for concealing and refusing to return classified documents after his departure from the White House. Mr. Trump hasn’t had to face trial, and he hasn’t had to fully account to the public for his actions, either.
The Justice Department abandoned the case against Mr. Trump after he won the 2024 election, citing a longstanding departmental policy against prosecuting sitting presidents. Since Mr. Trump returned to the White House, the Justice Department has worked hand in glove with his current lawyers to suppress the department’s report about its investigation of his actions. Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida, a Trump appointee who presided over Mr. Trump’s case, has issued an order prohibiting the Justice Department from disseminating the report — and effectively prohibiting Jack Smith, the special counsel who wrote it, from speaking about it publicly or even testifying about it to Congress.
Judge Cannon’s order should be vacated and Mr. Smith’s report released. There is a respectable argument for sparing a sitting president the burden of defending himself from criminal charges, but if presidents are to be immune from prosecution while in office, it’s all the more important that Congress and the public have access to the information that would empower them to hold the president accountable in other ways.
The Justice Department began its investigation of Mr. Trump in early 2022 after the National Archives and Records Administration discovered that some of the records he had taken from the White House were classified. Later that year, when Mr. Trump declared himself a candidate for the presidency, Attorney General Merrick Garland appointed Mr. Smith as a special counsel to take over the investigation — a move meant to ensure the investigation’s political independence.
Mr. Smith eventually sought an indictment in the Southern District of Florida, and in June 2023 a grand jury returned one. Mr. Trump was accused of taking documents to Mar-a-Lago, lying about whether he had them, showing them to people not authorized to see them and refusing to return them even after having been served with a subpoena. The indictment also charged Mr. Trump’s valet, Waltine Nauta, with helping him conceal the documents. Just over a month later, a superseding indictment added charges against Mr. Trump, Mr. Nauta and Carlos De Oliveira, Mr. Trump’s property manager at Mar-a-Lago.
If a jury had convicted them on these charges, Mr. Trump’s associates would probably have been sentenced to substantial prison terms, and Mr. Trump himself might have spent the rest of his life behind bars.
The Justice Department policy that spared Mr. Trump this possible fate — the policy against prosecuting sitting presidents — originates in a legal opinion that the department’s Office of Legal Counsel wrote in 1973 and reaffirmed in 2000. It stems mainly from the concern that requiring a president to answer criminal charges would compromise his or her ability to discharge the duties of the office. The department’s lawyers reasoned that it would be “incongruous” to allow a jury of 12 citizens to interfere so profoundly with a president’s ability to govern. They concluded that if a president’s mandate was to be terminated, it should be through impeachment.
It is no surprise, given this policy, that Mr. Smith abandoned the prosecution once voters returned Mr. Trump to the White House. But the suppression of Mr. Smith’s report is highly irregular and disturbing.
After the Justice Department abandoned the case against Mr. Trump in 2024, Mr. Smith completed his report and submitted it to the attorney general, as departmental regulations required. Mr. Trump and his co-defendants asked Judge Cannon to issue an order prohibiting the Justice Department from disseminating the report, contending that its release would compromise Mr. Nauta’s and Mr. De Oliveira’s rights to a fair trial.
In January 2025, Judge Cannon issued the order, even though Justice Department regulations authorized the attorney general to release the report, even though Mr. Smith had created a version of the report that minimized the identification of witnesses and co-conspirators and redacted other sensitive information, and even though Mr. Smith himself had made clear that the report should not be released to the public while the charges against Mr. Nauta and Mr. De Oliveira remained pending.
In February 2025, the Justice Department dropped the charges against Mr. Nauta and Mr. De Oliveira, making the concerns about their fair-trial rights moot. But just a few months ago, Judge Cannon reaffirmed her order, this time contending Mr. Smith had been appointed unconstitutionally and that therefore his report should be suppressed forever.
The current Justice Department, controlled as it is by lawyers who have demonstrated repeatedly that they are more loyal to Mr. Trump than to the rule of law, has made plain that it will not release the report even if Judge Cannon lifts her order; in one brief, department lawyers wrote that the report “belongs in the dustbin of history.” (Todd Blanche, the acting attorney general whom Mr. Trump has nominated to lead the Justice Department, was Mr. Trump’s lead counsel in the classified documents case.)
But Judge Cannon’s order does more than just constrain the Justice Department; it has also prevented civil liberties and news organizations from securing the report’s release under the Freedom of Information Act. The Knight Institute, which I direct, requested the report under the act last year; the Justice Department pointed to Judge Cannon’s order to justify rejecting our request. A federal judge in New York dismissed a similar request made by The New York Times on the grounds that Judge Cannon’s injunction could be challenged before Judge Cannon or not at all.
As it happens, Judge Cannon may have inadvertently provided a way to force the report’s disclosure. Before prohibiting the Justice Department from releasing the report, she insisted on reviewing the report herself. That brought the report within the scope of the First Amendment, which gives the public a presumptive right of access to most judicial hearings and related documents. Judge Cannon rejected a petition filed by the Knight Institute asserting a First Amendment right of access to Mr. Smith’s report, but we have appealed her ruling. The U.S. Court of Appeals for the 11th Circuit has said it will hear oral argument in the fall.
Mr. Smith investigated Mr. Trump for conduct that appears to have entailed an astonishing betrayal of the public’s trust as well as the nation’s security. Legislators and ordinary citizens should have the opportunity to read the report for themselves. It is incoherent to immunize the president from prosecution on the theory that he can be held accountable through the political process — and then to deny Congress and the public information that would help them do so.
