The judge who has kept former special counsel Jack Smith’s Mar-a-Lago report secret struck down a request by fired FBI agents subpoenaed in a “grand conspiracy” probe overseen by Attorney General Todd Blanche.
U.S. District Judge Aileen Cannon struck the agents’ motion Thursday in a brief order on the court docket, citing a “lack of conferral.” Many of the former agents came under scrutiny after President Donald Trump came back into office because they worked to prosecute him for allegedly mishandling classified documents.
Court rules in the Southern District of Florida require lawyers to talk with the other side “in a good faith effort to resolve the issues raised in the motion” before filing it.
The agents had asked Cannon to clarify whether her order restricting Smith’s report bars them from testifying to a grand jury in Fort Pierce, Florida, where she sits, or from consulting their own lawyers, according to their motion.
Cannon’s Feb. 23 order bars the Justice Department and anyone acting with it from sharing Volume II of Smith’s final report, or “any information or conclusions” in it, with anyone outside the department, the order says.
Volume II covers the classified documents case against Trump, which Cannon dismissed in 2024 after ruling that Smith had been unlawfully appointed, the order recounts. Cannon issued it at Trump’s request and with the Justice Department’s support, along with his former co-defendants, Waltine Nauta and Carlos De Oliveira.
When the House Judiciary Committee subpoenaed Smith for closed-door testimony in December 2025, the Justice Department reportedly told his lawyer that disclosing nonpublic information from the report would violate Cannon’s restrictions, the agents’ motion says.
The lawyers represent current and former FBI agents and analysts who worked on the classified documents investigation, including the agent whose sworn statement supported the 2022 warrant to search Trump’s Mar-a-Lago residence.
Another reviewed all of Volume II to confirm its accuracy, the motion says. Most of them have since been fired, many by FBI Director Kash Patel in February.
The motion says the FBI’s Miami field office contacted the lawyers in July and August to schedule voluntary interviews with five of the agents as part of a criminal investigation into possible civil rights violations.
Prosecutors said each would then testify before a Fort Pierce grand jury investigating an alleged “grand conspiracy” against Trump, the lawyers wrote. Two of the agents received grand jury subpoenas on Sept. 21.
“[I]f Clients testify in front of the grand jury and the Court later finds the testimony to have violated the Order, Clients risk being held in contempt,” the lawyers wrote. “Yet if they refuse to testify, they may also be held in contempt.”
“Undersigned counsel have diligently engaged in a good faith effort to resolve this issue without court intervention,” the lawyers wrote in the motion Cannon struck.
The Justice Department told the lawyers it would not seek clarification itself, said its work “does not disturb” the order and advised them to “simply file [for] whatever relief you [] deem appropriate,” according to the motion.
When asked again about the request, the department said it “take[s] no position,” the lawyers wrote.
Josh Gerstein, a legal affairs reporter for Politico, first pointed out that Cannon rejected the motion for failure to confer with “the parties in the criminal case.”
Roger Parloff, a senior editor at Lawfare, posted the motion’s account of those talks beside Cannon’s order on X.
“Yeah, I noted that myself. Aileen Cannon literally claiming she’s illiterate,” national security journalist Marcy Wheeler wrote.
“This does not come as a surprise from this particular jurist,” former U.S. Attorney Joyce Vance wrote on X.
The probe has yet to produce charges. Its lead prosecutor, Joseph diGenova, resigned Sept. 10, NBC News reported.
“If you want indictments where there’s no evidence, you have an ethical problem,” diGenova told the New York Post.
He later told The Associated Press the remark was taken out of context and that there was “plenty of evidence.”
Kenneth Wainstein, a lawyer for former CIA Director John Brennan, has called the decision to base the probe in Fort Pierce “judge-shopping,” or steering a case to a favorable judge, the AP reported.
The deadline to charge conduct from 2016 has long passed. But if the 2022 Mar-a-Lago search is part of the alleged conspiracy, prosecutors could have until at least 2027, a Lawfare analysis noted.
One agent was scheduled to testify this week, and two others are set to appear next week, according to the motion.
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