At least part of Special Counsel Jack Smith’s final report summarizing his lengthy investigations into President-elect Donald Trump and his allies could be made public this week after a federal appeals court allowed its release, though a court battle over whether to release the report threatens to delay the document’s release—and it remains to be seen whether the issue will be resolved before Trump’s inauguration.
Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony ... [+]
Smith has already resigned from the Justice Department after dismissing his investigations into Trump, but drafted a final report, in accordance with federal policy requiring special counsels to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel”—meaning why Smith decided to indict Trump on the charges he brought, and why he decided against any possible additional charges that were under consideration.
Smith’s report summarizes his two investigations into Trump: one for the ex-president’s efforts to overturn the 2020 election and one for Trump’s alleged withholding of White House documents and alleged obstruction against the government’s investigation into them, after both criminal cases were dropped following Trump’s election.
Attorney General Merrick Garland wants to keep the volume covering the documents case private until the prosecution is fully over, the DOJ said in a court filing last week, but intends to release the volume on the election case to the public.
But it’s still unclear whether the courts will allow it: The 11th Circuit Court of Appeals ruled Thursday the Justice Department could release the report, but an earlier ruling from Trump-appointed U.S. District Judge Aileen Cannon says the report can’t be released until three days after the 11th Circuit’s ruling, which means the soonest it could be made public is early Tuesday after Cannon’s order expires at midnight EST on Monday.
Trump’s co-defendants in the documents case—whose prosecution is still ongoing—want Cannon to extend her order, which could further delay the report’s release, while the Justice Department wants the 11th Circuit to overrule Cannon and throw out her order entirely, which means it could be released sooner than midnight Monday and Cannon could not extend the delay.
It’s unclear how much new information the report will include, given much of Smith’s evidence against Trump has already been made public through court filings, but Trump’s lawyers claimed in a filing Wednesday the report “goes into more detail about the alleged crimes President Trump and others supposedly committed and involves evidence that was never released to the public.”
It still remains to be seen how the court battle will play out over Smith’s report, and when it could be released. If Cannon doesn’t extend her order keeping the report on hold, then at least the election case volume could be released as soon as early Tuesday, and if the 11th Circuit throws out her order before midnight Monday, it could be released even sooner. But if the Trump-appointed judge does extend her block on the report getting released, it could make things more complicated. The DOJ has argued Cannon doesn’t have any power to keep the report on hold, but even if it challenged her in court, the legal tussle could extend past Trump’s Jan. 20 inauguration. If that happens, it’s all but certain the report will stay buried, as a Trump-controlled Justice Department likely wouldn’t release it given its criticism of the president-elect. It’s also possible either side could go to the Supreme Court before the report is publicly released—whether the DOJ challenges any order by Cannon delaying the report’s release, or if Trump’s co-defendants challenge any 11th Circuit order overturning Cannon—which could further draw out the legal battle.
Garland’s intention not to release the volume of the report on the documents case against Trump and his co-defendants until after the prosecution is fully over means it’s all but certain that volume will stay under wraps. The case against Trump’s co-defendants remains pending in federal appeals court and is likely to stay that way until after Trump is inaugurated. If the prosecution ends after Trump takes office, it would then be up to Trump’s attorney general pick, former Florida Attorney General Pam Bondi, to release the part of Smith’s report covering the documents case—which she is unlikely to do.
It’s not clear what Smith’s final report will say, with the special counsel only noting in a court filing Tuesday that the report will be two volumes “explaining the Special Counsel’s prosecution decisions.” That being said, Smith has already detailed through numerous court filings how prosecutors believe Trump committed crimes by spearheading efforts to overturn the 2020 election and allegedly withholding White House documents, which he’s likely to repeat in his final report. Smith has detailed in election case filings—including a major one released in October—how prosecutors say Trump pushed election fraud claims after the 2020 election despite knowing they were false, alleging Trump was repeatedly told by those around him his fraud claims were untrue and seemed to believe it himself, telling his family, “It doesn’t matter if you won or lost the election. You have to fight like hell.” He and his co-conspirators, who weren’t indicted, undertook a number of efforts trying to change the results, including pressuring state lawmakers and then-Vice President Mike Pence, and orchestrating a “fake electors” scheme in which GOP officials submitted false slates of electors to Congress, according to prosecutors. Trump also allegedly took little action to stop his supporters from rioting Jan. 6, with Smith alleging Trump watched the attack on the Capitol building play out on TV from the White House dining room while drinking Diet Coke. When an aide told him Pence had to be moved to a secure location, Trump allegedly replied, “So what?” In the documents case, prosecutors allege Trump took White House records back to Mar-a-Lago with him and then intentionally refused to turn them over to the government. Trump knowingly concealed classified documents from being turned over in response to a government subpoena, Smith alleges, employing aides to move documents so his lawyer wouldn’t find them. The indictment against Trump also shows White House materials being stored throughout Mar-a-Lago, including in its ballroom, in his bedroom and by a bathroom toilet.
While Smith’s departure spares Trump from firing Smith, as the president-elect had vowed to do, he could still try to seek revenge against the special counsel after taking office. Trump has previously suggested he wants to retaliate against Smith—one of many perceived enemies Trump could target in a second term—saying in interviews before the election he wanted Smith, who is not an immigrant, to be deported. House Judiciary Chair Rep. Jim Jordan, R-Ohio, sent a letter to Smith on Nov. 8 asking him to preserve all of his office’s records that could be relevant to a congressional inquiry, suggesting GOP lawmakers will also try to go after Smith in the coming months. “Jack Smith’s abuse of the justice system cannot go unpunished,” billionaire Elon Musk, who’s become one of Trump’s key advisers, tweeted in response to Jordan’s letter.
Garland named Smith as special counsel in November 2022 to oversee the federal government’s Trump investigations, appointing the third-party investigator in order to avoid perceptions of bias as Biden and Trump were slated to face off in the presidential election. Smith went on to indict Trump on 44 total felony counts between the two criminal cases, marking the first time a sitting or former president had ever been indicted on federal charges. While the cases were both scheduled to go to trial before the election—in March for the election case and May in the documents case—Trump and his lawyers managed to successfully drag them out. The federal election case was put on hold for months while the Supreme Court weighed whether Trump has immunity from criminal charges, which took until July—too late to go to trial before Election Day. Cannon appeared to slow-walk requests in the documents case for long enough that she ended up indefinitely postponing the trial, before ultimately dropping the charges altogether. Trump has pleaded not guilty to the charges against him and has long decried his criminal cases as “witch hunts” designed to harm his presidential campaign and railed against Smith, calling the special counsel a “thug” who’s biased against him.