Current and former FBI agents are asking the federal judge who blocked ex-special counsel Jack Smith from discussing his Mar-a-Lago findings to spell out whether they can testify safely in the Justice Department’s ongoing “grand conspiracy” inquiry in Florida.
The request to intervene, first reported by Politico, states that the agents and analysts involved “participated in the investigation and prosecution of” former President Donald Trump following the 2022 search of his Mar-a-Lago estate, a search that ultimately led to his indictment on classified documents and conspiracy charges.
U.S. District Judge Aileen Cannon threw out that indictment last year, ruling that Smith had been unlawfully appointed as special counsel and was, in her words, little more than a “private citizen.”
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The Trump-appointed judge also ordered that the second volume of Smith’s final report be kept out of public view as a result of that dismissal, criticizing Smith for what she called his “brazen” decision to compile it in the first place.
Cannon’s order permanently bars the Justice Department and then-Attorney General Pam Bondi, along with any successors, from “releasing, sharing, or transmitting Volume II of the Final Report or any drafts of Volume II outside the Department of Justice,” or from “otherwise releasing, distributing, conveying, or sharing with anyone outside the Department of Justice any information or conclusions in Volume II or in drafts thereof.” That language has left Smith severely limited in what he’s able to say publicly about the classified documents case.
The agents seeking to intervene say they don’t want to risk running afoul of that injunction, and are asking Cannon to clarify how her order applies to them if they’re subpoenaed before a grand jury.
“Absent clarification, Clients cannot testify before the grand jury without risking violating terms of the Order. DOJ has reportedly taken the position that any disclosure of nonpublic information that may be contained in Volume Two would violate the Order, even if such disclosure was made in response to congressional inquiry, in response to requests made under the Freedom of Information Act, or during privileged communications with counsel,” the filing states.
“When counsel requested clarification of DOJ’s interpretation of how its investigation interacts with the Order, the government responded that its ‘work does not disturb [the] Order,'” the motion adds. “However, it did not elaborate nor provide any factual or legal basis from which it came to that conclusion.”
Broadly speaking, the agents — “most” of whom, the filing says, “were unlawfully fired and are no longer federal employees” — say they’re willing to testify voluntarily before the grand jury, but not while facing the threat of “possible punitive consequences.”
“They are likely to be asked questions pertaining to information in Volume II 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 motion says. “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.”
“Although most were unlawfully fired and are no longer federal employees, Clients are deeply respectful of all court orders and do not wish to violate them,” the filing concludes.