The first volume of special counsel Jack Smith’s final report–cleared for release this week–may be little more than a parting shot by the Biden administration’s Justice Department days before Donald Trump’s second inauguration.
“There could be a few interesting tidbits about who testified to the grand jury and so forth, but as for hard evidence, there is not likely to be anything new,” Paul Kamenar, counsel for the National Legal and Policy Center, a watchdog group, told The Daily Signal. “The release of a report with no defining evidence that can’t be challenged in court is at best a final potshot at Trump on the way out for Merrick Garland and Jack Smith.”
U.S. District Judge Aileen Cannon cleared the way Monday for Attorney General Merrick Garland to release the volume of Smith’s final report pertaining to Trump’s challenge to the outcome of the 2020 election, which he lost to President Joe Biden.
Cannon rejected a request from two of Trump’s co-defendants in the separate classified document cases that Smith also investigated and indicted Trump for, to block the entire report. Smith resigned from his post as special counsel on Friday, but Garland still has his two-volume final report.
After the judge initially placed a temporary halt on the release of the report on the grounds that it could complicate due process for co-defendants Walt Nauta and Carlos de Oliveira, the Justice Department responded that it would only publicly release the volume of the Smith report pertaining to the election case.
Cannon had previously ruled that Smith was not constitutionally appointed to the case, and thus and was not eligible to bring criminal charges because he was not a Senate-confirmed official.
“His appointment was ruled unconstitutional, which should apply to any product coming from the special counsel’s office, whether it’s a report or the unlawful prosecution,” noted Kamenar, who has previously taught law at George Mason University and Georgetown University and argued cases for members of Congress before the Supreme Court.
Past special counsels testified before Congress about their final report. Robert Mueller, who investigated Trump, testified before Democratic-controlled House committees in 2019. John Durham, who investigated the Justice Department, testified in 2023, and Robert Hur, who investigated Biden, testified to the Republican-controlled House Judiciary Committee in 2024.
Even with Republicans controlling both the House and Senate, Kamenar anticipates that Smith–and possibly Garland–will testify on the investigation since Republicans will seek accountability.
Still, it’s questionable what, if anything, will be new about the election case in the forthcoming report.
Smith’s office already released a detailed 45-page four-count indictment against Trump in August 2023 in the election case. About a year later, Smith released a 36-page amended indictment to accommodate the Supreme Court’s presidential immunity ruling. Weeks before the presidential election, Smith’s office released a 165-page filing in the U.S. District Court for the District of Columbia.
On top of that, much of the information used in the Smith election case was backed up by an 814-page final report from the House Select Committee Investigating the Attack on the U.S. Capitol on Jan. 6, 2021.
“I suspect there is nothing new we haven’t already seen or heard about. But the packaging and presentation will be in such a way that is as unfavorable to Trump as possible,” Zack Smith, senior legal fellow at The Heritage Foundation and former assistant U.S. attorney for the Northern District of Florida, told The Daily Signal. “It will be packaged in a very consumer-friendly way. That’s not the purpose of the Justice Department to smear political opponents.”
“Merrick Garland pledged to be apolitical and restore the reputation of the Justice Department, and has done the opposite,” Smith of The Heritage Foundation added. “With the lawsuits and prosecutions, it has been one of the more partisan Justice Departments in history. I can’t read the attorney general’s mind. But this would be consistent with a final politicized move.”
The Justice Department said in the motion last week that it would make the second volume available for the chairmen and ranking members of the House and Senate Judiciary committees to view.
In her opinion Monday, Cannon found that releasing the volume on the election case posed no potential threat to co-defendants in the classified documents case.
“The Emergency Motion is denied as to Volume I. The United States represents that it ‘believes that nothing in Volume One of the Final Report … directly or indirectly refers, relies, or bears in any respect upon any evidence or argument relevant to any of the charges alleged against Defendants Nauta and De Oliveira in this case,’” Cannon’s opinion states. It later adds, “Based on these representations, the court sees an insufficient basis to grant emergency injunctive relief as to Volume I.”
