In a win for transparency, Volume 1 of special counsel Jack Smith’s investigative reportdocumenting Donald Trump’s alleged 2020 election subversion crimes, was released Tuesday, reminding readers of what the report calls Trump’s “unprecedented criminal effort to overturn the legitimate results of the election in order to retain power.”

Now the less good news: Judge Aileen Cannonwho had temporarily blocked the release of Vol. 1 of Smith’s report, has made it less likely that Vol. 2 will be released to the leadership of the House and Senate judiciary committees by scheduling a hearing on the matter for Friday.

Judge Aileen Cannon has made it less likely that Vol. 2 will be released by scheduling a hearing on the matter for Friday.

Given Trump’s Monday inauguration, the stakes in this battle for the limited release of Vol. 2 of the special counsel’s report, which focuses on Trump’s alleged classified documents crimes, are high.

In a dubious legal ruling in July in which she ruled that Smith had been unlawfully appointed, Cannon dismissed the classified documents case against Trump and alleged co-conspirators, Waltine Nauta and Carlos De Oliveira. The 11th Circuit U.S. Court of Appealshas not yet ruled on Smith’s appeal. Because Trump won in November, and because the Department of Justice’s Office of Legal Counsel is of the opinion that a sitting president cannot be prosecuted while in office, Smith dismissed Trump’s federal criminal cases, such that the president-elect is not part of the present appeal.

Importantly, when transmitting his report to Attorney General Merrick Garland, Smith recommended that Vol. 2 not be disclosed publicly, given that the case against Nauta and De Oliveira remains active and, in the event Cannon’s dismissal is reversed on appeal, they should be expected to face trial.

Garland agreed with Smith’s recommendation against publicly releasing Vol. 2 but announced his intent to make it available for “in camera review by the Chairmen and Ranking Members of the House and Senate Judicial Committees.”

Prosecutors note that such limited, nonpublic disclosures to members of Congress are routine and necessary to ensure that “Congress can fulfill its own constitutional oversight functions.” To minimize the risk of public release and potential harm to Nauta and De Oliveira, the “Chair and Ranking Members of the House and Senate Judiciary Committees would be required to agree to specified conditions of confidentiality,” including an agreement “not to share information in Volume Two publicly.”

This seemingly esoteric court battle is worthy of our attention for two reasons. If there is no disclosure of Vol. 2 to members of Congress, what might a Trump-led DOJ do to the evidence? Might it be destroyed in an attempt to make sure Trump is never held to account for the classified documents crimes? Recall that the documents case was dismissed without prejudice, which means the case could theoretically be refiled once Trump leaves office.

Second — and this is arguably the larger and more enduring problem — the Justice Department is litigating this issue as if Cannon has authority to preside over these matters when she doesn’t. Cannon never had jurisdiction over Vol. 1 (the election interference case), as that case was presided over by Judge Tanya Chutkan in the District of Columbia. And she lost jurisdiction over Vol. 2 when she dismissed the classified documents case. Because it’s on appeal, only the 11th Circuit has jurisdiction to take any action.

The Justice Department is litigating this issue as if Cannon has authority to preside over these matters when she doesn’t.

As my friend Joyce Vance, the pre-eminent appellate practitioner, noted, “The strangest thing about this entire proceeding is that Judge Cannon continues to issue orders when there is no case pending in front of her. That’s not how a court’s jurisdiction is supposed to work.”

In my 30 years as a federal prosecutor, I encountered judicial overreach like Cannon’s a handful of times. I always fought against it, believing prosecutors had a responsibility to oppose such overreach. We had a term for the decision to ignore judicial overreach: feeding the monster.

I would make my arguments to my DOJ supervisors in favor of filing a motion opposing such judicial overreach, believing it was important to fight such battles rather than just doing the expedient thing and trying to win on the merits. Some prosecutors, though, concerned about antagonizing the judge presiding in the case, declined to fight.

My personal experience was that more often than not, the DOJ hierarchy refused to wage such righteous battles with judges. This seems to be the decision prosecutors in the classified documents case have made. Instead of taking up the jurisdictional battle in earnest, they’re trying to win on the merits of the substantive litigation.

The approach has echoes of Smith’s decision not to try to have Cannon removed from presiding over Trump’s case after the 11th Circuit twice ruled Cannon abused her judicial discretion to the extreme benefit of Trump.

One last concern: Cannon set a hearing on the issue of the limited release of Vol. 2 for Friday. Do we really think she’ll issue her ruling before Monday and give the DOJ time to deliver the documents to congressional leadership?

Given Cannon’s track record in Trump-related litigation, it seems far more likely she rules after Jan. 20, when Trump’s administration can take control of not only this issue but all of the incriminating evidence uncovered by the Smith investigation.

Glenn Kirschner

Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and BLN legal analyst.

This is an adapted excerpt from BLN’s Jan. 15 special coverage of President Joe Biden’s farewell address.

On Wednesday, President Joe Biden delivered his farewell speech to the nation. During my time in the White House, I was there for many Biden speeches. I helped the president prepare for them. And I can tell you, this was not a traditional Biden speech.

A more traditional Biden speech would have started with a listicle of accomplishments, which is what many of us may have expected from Wednesday’s remarks. Instead, the president started out with a lengthy analogy about the Statue of Liberty withstanding a storm:

We can assume the storm Biden referred to there is Donald Trump and his incoming administration.

Biden didn’t promise the American people that the government  — the Supreme Court, Congress, the president — will protect them from the storm, instead, he told the American people they’ll have to protect themselves. With this speech, Biden didn’t pass the baton to his successor, as he would likely do if it were any other politician, he passed the baton to them.

To that end, the last few lines of the president’s speech were, perhaps, the most striking. Biden told the American people that it’s their turn “to stand guard.”

It’s a message that meets the moment. As he laid out, an oligarchy is taking shape in America. In the next administration, the leaders of tech companies and billionaires will likely have unfettered access to the Oval Office. The Supreme Court is dealing with an ethics crisis.

Biden’s final message to America was that we cannot count on these people to protect us. We have to protect ourselves, all of us, and the institutions that make America what it is.

Allison Detzel contributed.

Just Psaki

Jen Psaki is the host of “Inside with Jen Psaki”airing Sundays at 12 p.m. ET and Mondays at 8 p.m. EST. She is the former White House press secretary for President Joe Biden.

TikTok CEO Shou Chew is expected to attend Donald Trump’s inauguration ceremony, NBC News has confirmed. The news comes as the app’s executives are desperately trying to halt a law that would ban TikTok in the United States unless it’s sold by its Chinese owners.

The ban of the controversial app — which has become rife with right-wing misinformation and pro-Trump propaganda in recent years — is set to go into effect Sunday. Trump says he should have a chance to weigh in as president. And Chew met with the president-elect at Mar-a-Lago last month.

The man seems mighty desperate.

As my colleague Steve Benen noted WednesdayChew isn’t the only titan of the tech world planning to attend Trump’s inauguration. Other Big Tech executives — such as Meta CEO Mark Zuckerberg, X owner Elon Musk and Amazon CEO Jeff Bezos, as well as Google CEO Sundar Pichai and Apple CEO Tim Cook — reportedly will have prominent seats at Monday’s ceremony, near Trump’s Cabinet picks and elected officials. The tech execs and their companies have been showering Trump with $1 million donations.

The scene at the Capitol is shaping up to be a gross epitome of the Big Tech oligarchy I warned about after the election.

The scene at the Capitol is shaping up to be a gross epitome of the Big Tech oligarchy I warned about after the election — and which President Joe Biden warned about Wednesday in his farewell address from the Oval Office.

The Big Brother(s) of many Americans’ nightmares have arrived, in the form of these tech elites who have chosen to prostrate themselves to the incoming administration. ZuckerbergMuskBezosChewPichai and Cook all run companies that feed on Americans’ digital appetites and feast on our data — and have played large roles in our nation’s misinformation crisis.

And on Monday, they all plan to be in attendance to kiss Trump’s ring and celebrate his reascension to power.

In many ways, the imagery ought to be clarifying for Americans. It’s past time for all of us to dispense with the idea that social media and Big Tech platforms like these are designed to help keep us informed. Their leaders’ deference to Trump and his MAGA movement should be ominous for us all.

Ya’han Jones

Ja’han Jones is The ReidOut Blog writer. He’s a futurist and multimedia producer focused on culture and politics. His previous projects include “Black Hair Defined” and the “Black Obituary Project.”