Jack Smith spent much of Tuesday fielding questions that had little to do with the substance of his abandoned classified documents case against President Donald Trump, sticking close to the line drawn by U.S. District Judge Aileen Cannon’s permanent gag on the Mar-a-Lago report. A day later, an appeals court moved to hear challenges to that gag order far sooner than expected.
The 11th U.S. Circuit Court of Appeals had bounced United States v. Knight First Amendment Institute on and off its “tentative” calendar at least five times since American Oversight and the Knight Institute, seeking to intervene, asked the court in late December to stop the “destruction” of Volume II.
As recently as Tuesday, the parties were bracing for oral arguments sometime during the week of Jan. 18, 2027. By Wednesday morning, though, the court had reset the date, scheduling arguments for 2 p.m. on Nov. 2, a Monday.
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“The Court has determined that the cases listed on the attached calendar are to be orally argued on 11/02/2026 in Atlanta, Georgia. Counsel for each party must present oral argument unless excused by the Court for good cause shown,” a court memorandum read.
Cannon, a Trump appointee, previously ruled that Smith’s appointment as special counsel was unlawful, threw out Trump’s indictments over the alleged willful retention of classified documents and conspiracy, and voided everything Smith’s office had done in the case. In February, she went further, permanently barring release of the Mar-a-Lago report’s second volume, though she stopped short of ordering it destroyed.
Trump himself, his former co-defendants Walt Nauta and Carlos de Oliveira, and the Justice Department under Trump all back that outcome on appeal. American Oversight and the Knight Institute see it differently, arguing that Cannon’s rejection of the public’s right to access the material was “legally erroneous” and that the 11th Circuit should lift the injunction and “order Volume II placed on the public docket.”
Cannon’s order permanently forbids the Justice Department and then-Attorney General Pam Bondi, “or her successor(s),” from “releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice,” and bars “otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof.”
Smith had wanted to address Volume II both during a deposition and in an earlier congressional hearing, but with Cannon’s order standing in the way, he held back, saying he believed the Justice Department “will do everything in their power” to indict him “because they’ve been ordered to by the president.” On Tuesday, he again declined to discuss the case’s substance.
“Our investigation developed proof beyond a reasonable doubt that President Trump engaged in criminal activity,” he said. “If asked whether to prosecute a former President based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat.”
