A group of current and fired FBI agents who asked a judge to urgently clarify whether they can testify in the DOJ’s “grand conspiracy” probe about the contents of the Mar-a-Lago report she buried will have to ask again, after violating a local rule.
U.S. District Judge Aileen Cannon on Thursday issued a paperless order telling attorneys Margaret Donovan, Christopher Mattei, Abbe Lowell, Mark Zaid, Steve Bunnell and Allison Duffie that their Sept. 24 motion was stricken from the docket for a “lack of conferral.”
A quick review of the motion shows the attorneys claimed to have “diligently engaged in a good faith effort to resolve this issue without court intervention,” and said the DOJ took “no position” on the request.
But Southern District of Florida Local Rule 88.9(a) requires that motions filed in criminal cases, which here are the closed cases against President Donald Trump, his valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, “shall” include a “statement certifying” to the Clerk of Court that “counsel have conferred in a good faith effort to resolve the issues raised in the motion and have been unable to do so.”
The rule offers another option: certifying “that counsel for the moving party has made reasonable effort (which shall be identified with specificity in the statement) to confer with the opposing party but has been unable to do so.”
It is the same local rule that then-criminal defense attorney Todd Blanche accused former special counsel Jack Smith of “blatant[ly]” violating when he sought a gag order against then-candidate Trump over Memorial Day weekend in 2024. Cannon subsequently blasted Smith for a “pro forma ‘conferral'” that was “wholly lacking in substance and professional courtesy,” rather than a “meaningful conferral[.]”
A year earlier, Cannon also proved to be a stickler for a different local rule, dinging the Special Counsel’s Office for spamming the docket with “unauthorized” and excessively wordy notices of supplemental authority.
The would-be intervening FBI agents, “most” of whom “were unlawfully fired and are no longer federal employees,” have expressed a willingness to “voluntarily testify before the grand jury” in Florida. They are not simply taking the DOJ’s word, however, that its grand jury “work does not disturb [Cannon’s] Order.”
Cannon dismissed Trump’s Mar-a-Lago indictment in July 2024, finding that “private citizen” Smith was unlawfully appointed as special counsel. The Trump-appointed judge invalidated the special counsel’s acts, permanently enjoined the DOJ from releasing Volume II, barred disclosures of its contents, and criticized Smith’s production of the Mar-a-Lago report as a “brazen” violation of at least the spirit of her order.
Smith did not and could not testify before the Senate this week about Volume II. Meanwhile, the 11th U.S. Circuit Court of Appeals made waves Wednesday by moving up oral arguments in the challenge to Cannon’s injunction.
A reversal would remove the risks that the FBI agents and Smith face in speaking about Volume II.
A source with knowledge of the case confirmed to Law&Crime that the agents intend to refile their motion in compliance with the conferral requirement.