The Biden-Harris Justice Department has explained that it intends to make public a portion of a final report special counsel Jack Smith has prepared for Attorney General Merrick Garland with respect to the January 6 (J6) investigation, but Garland will withhold publication of Smith’s final report on his Mar-a-Lago (MAL) documents investigation. The concession on the latter is due to the case pending against two men who were indicted along with (now) President-elect Trump — although disclosure of Smith’s MAL report will be made, with conditions, to the chairmen and ranking members of the House and Senate Judiciary Committees.

The explanation appeared in a brief DOJ filed in the Eleventh Circuit, in opposition to the motion for an injunction filed this week by Trump’s aforementioned MAL codefendants: Waltine Nauta and Carlos De Oliveira.

All charges that Smith brought against Trump have been dismissed. Judge Aileen Cannon dismissed the MAL case upon determining that Smith’s special counsel appointment violated the Constitution’s appointments clause. Subsequently, once Trump won the 2024 election in November, DOJ (a) dropped its appeal to the Eleventh Circuit of Judge Cannon’s dismissal ruling with respect to Trump, and (b) dismissed its J6 indictment of Trump (with leave of Judge Tanya Chutkan, who was presiding over the case).

DOJ, however, maintained its Eleventh Circuit appeal as to Nauta and De Oliveira. At least theoretically, then, they could still be tried by Judge Cannon in Florida if the Eleventh Circuit were to reverse Cannon’s ruling disqualifying Smith. As a practical matter, though, that won’t happen because once Trump takes office, his DOJ will undoubtedly withdraw the Eleventh Circuit appeal (assuming, as I do, that the Circuit does not rule in the few days prior to Inauguration Day — January 20).

Nevertheless, because the case against them is still technically alive, Nauta and De Oliveira had standing to complain that, were Smith’s final report on MAL to be made public, it would violate their fair trial rights. As a result, as I detailed yesterday (here and here), they sought an injunction before both Judge Cannon and the Eleventh Circuit that would block DOJ from publicizing Smith’s report. Simultaneously, Trump’s lawyers protested to Garland.

Yesterday, Judge Cannon issued a temporary injunction barring public disclosure of the report until further direction from the Eleventh Circuit. To repeat what I said about that, I don’t believe Cannon has jurisdiction to take any action in the case because the government’s appeal of her dismissal order transferred the case to the Circuit. Still, I thought this would be a moot point because of proceedings in the Circuit.

And so it is. In DOJ’s responsive brief in the Eleventh Circuit, prosecutors agreed that they would not make the MAL report public while the case against Nauta and De Oliveira is pending. Garland intends to make the MAL report available for review to the aforementioned leaders of the two Judiciary Committees, provided that they agree to refrain from making any information public while the case is still pending.

DOJ’s brief clarifies that the two volume report described by the president-elect’s lawyers, who reviewed it a few days ago, pertains to both the J6 and MAL investigations — Volume I and Volume II, respectively.

I observed yesterday that there is no necessity for a final special-counsel report regarding MAL. It was extensively indicted and litigated; Smith’s charging decisions are plain for all to see and there is no need for further amplification.

If anything, there is even less justification for a final J6 report. In the weeks just prior to the election, while early voting was underway, Smith submitted — and, with Judge Chutkan’s permission, publicized — a lengthy one-sided description of the J6 case he hoped to present against Trump, along with a multi-volume appendix, nearly 2,000 pages long, setting forth witness statements and other evidence.

In its brief, DOJ contends that these final reports must be done because they are required by its special counsel regulations — specifically, §600.8(c), which states that the special counsel “shall provide the Attorney General with a confidential report explaining [his] prosecution or declination decisions.” Under these same regs – §600.9, to be precise — the AG decides how much, if any, of these reports to make public.

Coming from this Justice Department, such an argument is rich indeed. As I’ve detailed in the past, whenever it suits his purposes, Garland takes the position that he need not actually follow the special counsel regulations because, pursuant to §600.10, they create no rights and may not be enforced by courts — in essence, DOJ considers them to be suggestions, not requirements. Consequently, for example, Garland appointed a top Biden-Harris DOJ official (Delaware U.S. attorney David Weiss) to be “special counsel” in the investigation of President Biden’s son Hunter even though the same regulations (specifically, §600.3) state that a special counsel “shall be selected from outside the United States Government.” In refusing for a couple of years to appoint a special counsel on the Biden case, moreover, Garland ignored the regulations (§600.1) that call for one to be appointed whenever the Justice Department is beset by a conflict of interest.

Smith and the Biden-Harris Justice Department are compiling these reports, which are intended for the consumption of the public and congressional Democrats, because they want to, not because they believe they have to. The J6 report is being rushed out prior to Inauguration Day. The MAL report would have been issued, too, but publication has been complicated DOJ’s mulish determination to persist in the prosecution of the minor players — even though Biden’s DOJ already lost the case against Trump, and it’s clear that Trump’s DOJ will abandon whatever remains of the case the moment it is empowered to do so. Yet, Garland knows that, by sharing the MAL report with the leaders of the two Judiciary Committees, he will position congressional Democrats to push for its eventual publication.

I don’t think these reports will be consequential. The Mueller Report was very consequential — it became fodder for extensive congressional hearings and potential impeachment — but that was because Trump was never charged in Russiagate; therefore, the special counsel report became the only comprehensive prosecutorial outline of the case. By contrast, the facts of J6 and MAL, as alleged repeatedly by prosecutors (and also by a congressional committee in connection with J6), are well known.

The public elected Trump notwithstanding those facts. It thus is very unlikely that Democrats will be able to make much hay with them, even if they retake one or both houses of Congress two years from now.