Clinic Urges 11th Circuit to Unseal Special Counsel Jack Smith’s Report
The Media Freedom and Information Access (MFIA) Clinic at Yale Law School has filed an amicus brief on behalf of a group of First Amendment scholars urging the U.S. Court of Appeals for the 11th Circuit to unseal parts of Special Counsel Jack Smith’s final report prepared in the criminal prosecution of now-President Donald Trump over his mishandling of classified documents. The amicus brief argues that District Court Judge Aileen Cannon violated settled law in declaring that Volume II of Special Counsel Smith’s report is not a “judicial record” subject to disclosure.
The dispute began when Trump’s legal team asked Judge Cannon to block the Department of Justice (DOJ) from sharing Volume II outside the department, including with congressional leadership, before Trump’s inauguration in January 2025. After confidential (in camera) review, Judge Cannon ruled that the document was not a court record subject to the public’s common-law right of access and entered an order stopping DOJ from releasing it.
MFIA’s brief maintains that firmly established 11th Circuit law treats documents submitted to a court for a substantive decision as judicial records covered by the common-law right of access. Because the report section was produced to the court and used to resolve an emergency motion on the merits, the brief contends it qualifies as a judicial record.
“The DOJ submitted Special Counsel Smith’s report to the district court to inform how the court would exercise its judicial power, an exercise the public has an interest and duty to oversee,” said Kelsey Griffin, second-year Yale Law student and member of the MFIA Clinic. “The district court’s order misunderstands the precedent protecting the public’s right to see judicial records, and in doing so, it blocks access to information at the heart of intense public concern. The 11th Circuit should restore the baseline rule that judicial decision-making can’t happen in the dark.”
The brief also argues that the district court applied the wrong test by focusing on whether the document was formally filed on the public docket, reviewed in camera, or contained nonpublic material. Under 11th Circuit precedent, the key question is whether the court used the document to decide a substantive issue.
“This case concerns key separation of powers issues — whether the judicial branch may prohibit the executive branch from sharing a report with the legislative branch concerning a prosecution of the Executive. Ensuring that decisions of this nature are not shrouded in secrecy is the heart of the common law right of access,” said Anna Selbrede, third-year Yale Law student and student director of the MFIA Clinic.
The amici represented include First Amendment scholars Jack M. Balkin, Heidi Kitrosser, Christina Koningisor, Genevieve Lakier, Gregory P. Magarian, Burt Neuborne, Francesca Procaccini, and Sonja R. West.
The MFIA clinic team was led by Floyd Abrams Lecturer in Law David A. Schulz ’78, the director of the clinic, along with contributions from Yale Law School students Kelsey Griffin ’27, Ara Johnson ’26, and Anna Selbrede ’26, and Visiting Associate Clinical Professor John Langford ’14.
A decision from the 11th Circuit is expected later this year.
The Media Freedom and Information Access Clinic at Yale Law School is a law student clinic dedicated to increasing government transparency, defending the essential work of newsgatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work.
