The end of the case tees up a battle over the release of Jack Smith’s final report.
The Trump Justice Department has formally alerted the Eleventh Circuit federal appellate court that it is dropping the government’s appeal of Judge Aileen Cannon’s decision dismissing the indictment in the Mar-a-Lago documents case brought by Biden DOJ special counsel Jack Smith.
Last year, Judge Cannon, of the federal district court in South Florida, threw out the charges against Trump and two co-defendants, Waltine Nauta and Carlos De Oliveira, on the rationale that Smith’s special counsel appointment by Biden’s attorney general, Merrick Garland, violated the Constitution’s appointments clause.
The Biden DOJ appealed to the Eleventh Circuit. After Trump won the 2024 election, however, it dropped the appeal as to him. This is because Trump’s victory triggered long-standing Justice Department guidance that a sitting president may not be subjected to criminal prosecution; consequently, DOJ dismissed the 2020 election interference case pending against Trump is Washington, D.C., federal district court, and the appeal in the Eleventh Circuit. Yet it maintained the appeal against Nauta and De Oliveira. That is the appeal that the Trump DOJ has now dismissed.
This brings us to the controversy Garland teed up regarding Smith’s final report.
As we’ve related, Smith provided a two-volume report regarding his Trump investigations to Garland, the first dealing with the election interference case, the second with the Mar-a-Lago documents. Judge Cannon, however, blocked public release of the report, at the behest of Nauta and De Oliveira, on the ground that the Biden DOJ was still pursuing the Mar-a-Lago case as to them and thus its dissemination would theoretically prejudice their fair trial rights.
This claim had nothing to do with the election interference volume of Smith final report, and so it was released when Cannon’s temporary restraining order lapsed. Nevertheless, the DOJ had to concede that the release of the Mar-a-Lago documents report would have a prejudicial effect, and it agreed that it should not be released.
Of course, Garland knew the Trump DOJ would promptly abandon the appeal and that the case would be dismissed as to Trump’s co-defendants. He therefore took pains to pronounce (in a January 14 letter to the bipartisan leaders of the House and Senate Judiciary Committees) that at such time as the case against Nauta and De Oliveira were dismissed, it would be in the public interest to disseminate the Mar-a-Lago documents volume of Smith’s final report.
There is no statutory or regulatory requirement that special counsel reports be made public. The regs — which, as Garland pointed out when it suited his purposes, are not enforceable against the DOJ and vest no legal rights in third parties — provide that the special counsel should furnish the AG with a “confidential” report, and that the AG should then determine how much, if any, of the report should be publicized. Publication has become the norm because of pressure from Congress and the media, but it cuts against DOJ guidelines against making public the evidence against people who are not facing charges and thus have no judicial forum (and due process arsenal) with which to defend themselves.
Assuming she is confirmed, it will be up to Trump’s AG nominee, Pam Bondi, to decide whether to release Smith’s Mar-a-Lago report to the public. Undoubtedly, congressional Democrats will demand disclosure, and a commitment to publish the report will be sought from Trump’s remaining DOJ nominees, particularly Todd Blanche, nominated to be deputy attorney general.
The indictment filed by Smith accused Trump of 32 felony counts of illegally retaining national defense intelligence, as well as conspiracy and related felony charges alleging that he, Nauta, and De Oliveira obstructed justice. The indictment is very detailed; its allegations have been public for years.
Ergo, if I were advising Trump, I’d suggest allowing Bondi to release the report since — as Garland calculated — withholding publication (which will be Trump’s instinct) would be more politically damaging than the report itself. Plus, if the report is withheld and the resulting congressional and media pressure induces the administration to relent and publish it, that would only call more attention to it. The public knew all about the Mar-a-Lago case, and it elected Trump anyway. It is unlikely that the disclosure of Smith’s report would break startling new ground, even though it would surely reveal some previously undisclosed information and testimony regarding the facts and circumstances of the case — presented in the light most favorable to the prosecutor. Publicity-wise, the release of Smith’s election interference report was a dud. Right now, the public cares about the new Trump administration, not the old Trump cases. The publication of the Mar-a-Lago report would only be a big deal if the president turned it into a big deal.
Alas, I would not bet the beach resort on the president’s following my advice.