The Justice Department said Wednesday that it intends to release special counsel Jack Smith’s findings on Donald Trump’s efforts to undo the results of the 2020 presidential election but will keep under wraps for now the rest of the report focused on the president-elect’s hoarding of classified documents at his Mar-a-Lago estate.
The revelation was made in a filing to a federal appeals court that was considering a defense request to block the release of the two-volume report while charges remain pending against two Trump co-defendants in the Florida case accusing the Republican former president and current president-elect of illegally holding classified documents. Aileen Cannon, the Trump-appointed judge presiding over the classified documents case, granted the request Tuesday, issuing a temporary block on the report.
The Justice Department said it would proceed with plans to release the first of two volumes centered on the election interference case but would make the classified documents section of the report available only to the chairmen and ranking members of the House and Senate Judiciary Committees for their private review as long as the case against Trump’s co-defendants — Trump valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira — is ongoing.
“This limited disclosure will further the public interest in keeping congressional leadership apprised of a significant matter within the Department while safeguarding defendants’ interests,” the filing said.
The decision lessens the likelihood that the report on the classified documents investigation, which of all inquiries against Trump had once seemed to carry the greatest legal threat, would ever be released given that the Trump Justice Department almost certainly will not make the document public even after the case against Nauta and De Oliveira is resolved.
Lawyers for Nauta and De Oliveira objected to the Justice Department’s proposal in a filing of their own Wednesday evening, asking the appeals court to send the case back to Cannon for a hearing.
They said sharing the report with members of Congress creates the potential for it to leak and “reflects an improper attempt to remove from the district court the responsibility to oversee and control the flow of information related to a criminal trial over which it presides, and to place that role instead in the hands of the prosecuting authority — who unlike the trial court has a vested interest in furthering its own narrative of culpability.”
Trump has repeatedly denied wrongdoing and been bitingly critical of Smith, including during a wide-ranging news conference at Mar-a-Lago in Palm Beach, Florida, on Tuesday in which he said, “It’ll be a fake report just like it was a fake investigation.”
It was not immediately clear when the election interference report might be released. The filing asks the Atlanta-based U.S. Court of Appeals for the 11th Circuit to reverse Cannon’s order that appeared to at least temporarily halt the release of the entire report. The Justice Department asked the appeals court to undo the freeze and make clear that its “resolution of this question should be the last word,” though it also acknowledged the potential that the Supreme Court may be asked to weigh in.
In its brief, the Justice Department said that the attorney general’s authority to publicly release the election interference section of the special counsel’s report is “clear” and that Trump’s co-defendants have no legal argument to block the disclosure of a section that has nothing to do with them.
“Indeed, with respect to Volume One of the Final Report, defendants are hardly differently situated than any other member of the public,” the department said.
The report is expected to detail findings and explain charging decisions in Smith’s two investigations.
The classified documents inquiry was dismissed in July by Cannon, who concluded that Smith’s appointment was illegal. Smith’s appeal of the dismissal of charges against Nauta and De Oliveira, who were charged alongside Trump with obstructing the investigation, is still active, and their lawyers argued this week that the release of a report while proceedings were pending would be prejudicial and unfair.
The election interference case was significantly narrowed by a Supreme Court ruling on presidential immunity. The court ruled then for the first time that former presidents have broad immunity from prosecution, all but ending prospects Trump could be tried before the November election.
Smith’s team abandoned both cases in November after Trump’s presidential victory, citing Justice Department policy that prohibits the federal prosecutions of sitting presidents.
Justice Department regulations call for special counsels appointed by the attorney general to submit a confidential report at the conclusion of their investigations. It’s then up to the attorney general to decide what to make public.
Attorney General Merrick Garland has made public in their entirety the reports produced by special counsels who operated under his watch, including Robert Hur’s report on President Joe Biden’s handling of classified information and John Durham’s report on the FBI’s Russian election interference investigation.
The court request from De Oliveira and Nauta to block the report also included a letter from Trump’s legal team, including Todd Blanche, his pick for deputy attorney general, that made similar points and used language that echoed some of Trump’s own attacks on Smith and his work.
Blanche told Garland that the “release of any confidential report prepared by this out-of-control private citizen unconstitutionally posing as a prosecutor would be nothing more than a lawless political stunt, designed to politically harm President Trump and justify the huge sums of taxpayer money Smith unconstitutionally spent on his failed and dismissed cases.”
