There is no doubt that Southern District of Florida Judge Aileen Cannon harbors unduly kind feelings toward her patron, President Trump. Her bizarre prior rulings in the documents case, reversed by the Eleventh Circuit, leave no doubt. But that doesn’t mean she’s necessarily wrong.

A Trump-appointed federal judge on Monday permanently barred the Justice Department from releasing a report by the special counsel Jack Smith detailing President Trump’s mishandling of reams of classified documents after he left the White House in 2021.

The ruling by the judge, Aileen M. Cannon, was her latest effort in the past several months to keep the public from seeing Mr. Smith’s sprawling report — one of the most significant parts of his twin prosecutions of Mr. Trump that has yet to see the light of the day.

While Press Secretary Karoline Leavitt persists in claiming that the Trump administration is the most transparent in history, the justice department, to no one’s surprise, took the side of Trump’s lawyers to prevent disclosure of Volume II of Special Counsel Jack Smith’s report about the documents case. Concealment isn’t exactly the hallmark of transparency. And unlike its various prosecutions of Trump’s enemies, it prevailed before Judge Cannon, who denied the applications of American Oversight and the Knight First Amendment Institute to appear as amici.

Judge Cannon also ruled that releasing the report, which contains investigative materials that have never been made public, would “cause irreparable damage” to Mr. Trump and his two co-defendants and would “contravene basic notions of fairness and justice in the process.”

Crazy? Not so fast. While Cannon’s decision to dismiss the prosecution was based on yet another bizarre ruling that Smith was improperly appointed as special counsel, the appeal of that ruling was voluntarily dismissed after Trump won re-election.

The order, issued from Federal District Court in Fort Pierce, Fla., slammed Mr. Smith for the “brazen stratagem” of drafting his report even after Judge Cannon had dismissed the classified documents case in July 2024 and found that he had been improperly appointed to his post as special counsel.

You know what they call a bad decision that is left unappealed? The law of the case. Nonetheless, the would-be amici argued that concealment of Volume II was still improper.

“Judge Cannon’s ruling continues a troubling pattern of decisions that shield the president from public scrutiny and place secrecy above the public’s right to know,” Chioma Chukwu, the executive director of American Oversight, said in a statement issued Monday. “By permanently blocking the release of Volume II of the special counsel’s report and denying our effort to seek a stay while our appeal moves forward, the court has ensured that the public is denied information of extraordinary national importance.”

Scott Wilkens, senior counsel at the Knight Institute, echoed the criticism.

“Judge Cannon’s decision to permanently block the release of this extraordinarily significant report is impossible to square with the First Amendment and the common law,” he said.

It may be hard to feel particularly sympathetic to the “unfairness” of releasing a report by a special prosecutor about conduct that is widely known and flagrantly illegal, the fact remains that the prosecution was dismissed and the dismissal was not reversed on appeal. Trump enjoys the same presumption of innocence that covers every accused, and having not been convicted of this crime, his presumption remains intact.

But this was a special counsel, and don’t special counsel issue reports?

Moreover, while it is true that former special counsels have released final reports at the conclusion of their work, it appears they have done so either after electing not to bring charges at all or after adjudications of guilt by plea or trial. The Court strains to find a situation in which a former special counsel has released a report after initiating criminal charges that did not result in a finding of guilt, at least not in a situation like this one, where the defendants contested the charges from the outset and still proclaim their innocence. Regardless, it is certainly not customary for a prosecutor, who obtains an indictment and initiates a criminal prosecution that is later dismissed in a final order without an adjudication of guilt, to publicly disseminate large swaths of discovery generated in the case—much less after directing defense counsel to destroy the discovery as a condition of reviewing the report he insisted on producing despite a court order declaring his appointment unlawful. In the end, therefore, if nothing else, we return to basic fairness.

Judge Cannon has a point, that the mechanism by which a special counsel reports on what he contends is a crime is by prosecution culminating in conviction, not by a final dismissal followed by dissemination of a report arguing guilt. While it’s understandable that Smith chose not to pursue the appeal given that extreme improbability that he would be able to complete the process given Trump’s election, the fact remains that the dismissal was not reversed and guilt was never established. Should he be able to taint a defendant in a post-dismissal report, where the defendant gets no opportunity to challenge the accusations, cross-examine witnesses and offer evidence? Due process cuts both ways.

And yet, this involves an extraordinary situation, a president who almost certainly engaged in flagrant criminal conduct, even if he doesn’t care about doing so, which will never get a public airing between Judge Cannon’s absurd dismissal and the timing of Smith’s withdrawal of the appeal. Should crimes by a past and future president be buried because of fortuitous timing?

*Tuesday Talk rules apply.