The Justice Department’s successful push to release former President Joe Biden’s private memoir tapes is undercutting the Trump administration’s effort to keep former special counsel Jack Smith’s classified documents report under seal, a First Amendment watchdog argued Tuesday.The Knight First Amendment Institute at Columbia University and American Oversight filed a brief to the U.S. Court of Appeals for the 11th Circuit to overturn U.S. District Judge Aileen Cannon’s permanent injunction barring the report’s release. The groups said neither the DOJ nor President Donald Trump’s legal team, which both seek to keep the report under wraps, has justified why the public’s right of access should be overridden.“The government has not argued that the public’s right of access has been overcome here,” attorneys for the free speech advocacy group wrote in its reply brief, urging the appeals court not to allow Smith’s Volume II report to remain permanently sealed without that showing.
The filing comes as nearly 70 hours of audio recordings from Biden’s conversations with his ghostwriter, Mark Zwonitzer, became public following a two-year legal fight. The recordings, cited in former special counsel Robert Hur’s investigation into Biden’s handling of classified documents, include Biden discussing material he believed may have been classified.The Biden administration had fought for nearly two years to block their release, but after leaving office, the Trump DOJ reversed its litigation position regarding Freedom of Information Act disclosures and Privacy Act protections for uncharged investigative materials. Biden later filed a lawsuit in May challenging the department’s reversal.Biden ultimately lost at both the federal district and appeals court in Washington, D.C., and he dropped his appeal after the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 against him this month. That move helped set the stage for the conservative Oversight Project’s victory on Monday in Heritage v. U.S. Department of Justice, resulting in the release of the previously shielded interview tapes.The plaintiffs seeking the release of Smith’s report pointed to that ruling in a footnote in their brief, asking the U.S. Court of Appeals for the 11th Circuit to revisit Cannon’s order shielding Smith’s report. The appeal is part of litigation in the 11th Circuit over whether Cannon’s injunction can stand.A passage from the Knight First Amendment Institute’s 11th Circuit brief citing the Biden memoir tapes ruling in support of releasing Jack Smith’s classified documents report.
