Attorney General Merrick Garland intends to release the volume of special counsel Jack Smith’s report alleging President-elect Donald Trump committed crimes in challenging the 2020 election—but he’s withholding the volume on Trump’s handling of classified documents after he left the presidency in 2021.
This comes one day after U.S. District Court Judge Aileen Cannon temporarily blocked the public release of the report related to the classified documents cases. The ruling stemmed from two defendants charged along with Trump in the documents case arguing that the public release of such a report would likely prejudice a jury and future criminal proceedings against them.
“The special counsel has already transmitted the final report to the attorney general. Volume One related to the prosecution of President Donald Trump relating to the 2020 presidential election. Volume Two relates to the special counsel’s investigation and prosecution of Waltine Nauta and Carlos De Oliveira, as well as President Trump, related to mishandling of classified documents,” the Justice Department’s filing Wednesday in the 11th Circuit says.
“The attorney general intends to release Volume One to Congress and the public, consistent with 28 CFR S 600.9(c) and in furtherance of the public interest in informing a coequal branch and public regarding this significant matter,” the filing continues. “But to avoid any risk of prejudice to the defendants Nauta and De Oliveira, the attorney general has determined at the recommendation of the special counsel, that he will not publicly release Volume Two so long as defendants’ criminal proceedings remain pending.”
The Justice Department filing in the 11th Circuit adds: “Volume Two will be made available for in camera review by only the chairmen and ranking members of the House and Senate judiciary committees upon their request and agreement not to release any information from Volume Two publicly.”
Those four would be Chairman Jim Jordan, R-Ohio, and ranking member Rep. Jamie Raskin, D-Md., on the House Judiciary Committee, and Chairman Chuck Grassley, R-Iowa, and ranking member Sen. Dick Durbin, D-Ill., on the Senate Judiciary Committee.
Cannon, the judge in the U.S. District Court for the Southern District of Florida, previously dismissed the classified documents case against Trump on the grounds that Smith’s appointment as prosecutor was not constitutional. The Justice Department appealed the ruling, which is still pending.
After the November election, Smith announced he would drop charges against Trump, because Justice Department guidelines say a president should not be prosecuted while in office. However, the case against defendants Nauta and De Oliveira in the classified documents case continued.
Those defendants, Nauta and De Oliveira, have asked the court to block the release of the entire report. So, Garland should at least wait until the 11th U.S. Circuit Court of Appeals makes a decision on that point, Paul Kamenar, legal counsel for the National Legal and Policy Center, a watchdog group that initially raised questions about the constitutionality of special counsel appointments.
“The attorney general would be on shaky ground and presumptuous to release one volume of the report before the 11th Circuit decides,” Kamenar told The Daily Signal.
Still, such a report would be almost irrelevant if Smith’s appointment was unlawful.
“The special counsel already gave the report to the attorney general. So, they are saying the cat is already out of the bag, and it’s up to the attorney general whether to release the report,” Kamenar continued. “I would argue that Jack Smith’s appointment was unconstitutional for both cases.”
The DOJ filing says the two remaining defendants “have no cognizable interest in that volume of the final report” and no legal standing to challenge the portion accusing Trump of wrongdoing for challenging the outcome of the 2020 election, which he lost to Joe Biden.
It’s unclear what, if anything, new would be in Smith’s report regarding the election case that would be different from the indictment of Trump in the election case or the report by the House Select Committee Investigating the January 6 Attack on the United States Capitol.
The filing acknowledges the defendants argued the special counsel was unlawfully appointed. The DOJ says that is “irrelevant to the only action here at issue—the handling of the final report by the attorney general.”
“The district court in dismissing the indictments against the defendants did not purport to enjoin the operations of the special counsel nationwide, nor could it have properly done so in this criminal case,” the DOJ brief argued Wednesday. It later adds: “What the defendants ask this court to enjoin is not any action by the special counsel, but the attorney general’s authority to decide whether to make such a report public.”
