And so the special counsel probe ends, not with a bang but a whimper.
Attorney General Merrick Garland has formally alerted the chairmen and ranking members of the House and Senate Judiciary Committees that Jack Smith’s special counsel investigation of (now) President-elect Trump is closed. Smith, the AG’s letter adds, has delivered to Garland a two-volume final report — volume 1 on the January 6 investigation, volume 2 on the Mar-a-Lago documents investigation.
I explained yesterday that this report was imminent and that Garland would claim that the special counsel regulations — which he has a history of following only selectively — mandated it.
Garland informed the committees that he is prepared to issue the January 6 portion of the report. He qualified, however, that the Justice Department is temporarily enjoined from publicly releasing any of the report because of an order by Judge Aileen Cannon of the federal district court in South Florida.
To repeat what we discussed earlier this week, Judge Cannon’s concern was not about the January 6 case; it was about the Mar-a-Lago case, over which she presided. Although Cannon dismissed that case because of the constitutional infirmity of Garland’s appointment of Smith as special counsel, the Justice Department appealed that dismissal to the Eleventh Circuit. The DOJ subsequently dropped the appeal as to Trump when the president-elect won the election (and the DOJ simultaneously dismissed the January 6 indictment); but prosecutors did not drop the appeal as to Trump’s two Mar-a-Lago co-defendants, Waltine Nauta and Carlos De Oliveira.
Those two defendants filed objections with Judge Cannon, arguing that the public release of Smith’s report would prejudice their right to a fair trial. They also objected in the Eleventh Circuit. As even DOJ has conceded (in its Eleventh Circuit responsive submission), they have a point. That point was Cannon’s rationale for directing that the report not be made public until the Eleventh Circuit weighed in.
That said, Cannon’s order is dubious. First, the filing of the DOJ’s appeal of her decision dismissing the indictment divested Cannon of jurisdiction to act on the case. Second, although Cannon obviously intended to block only the Mar-a-Lago portion of the report from being withheld, her temporary injunction was worded in a way that seems to apply to Smith’s entire report — including the January 6 portion.
To reiterate what I noted yesterday, the DOJ has said it will not release the Mar-a-Lago volume of the report while the case is pending against Nauta and De Oliveira. In his letter to the leaders of the two congressional committees, Garland says that once the case against them is no longer, “I have determined that . . . releasing Volume Two of the Report to you and to the public would also be in the public interest, consistent with law and Department policy.”
Obviously, Garland added that assertion because, once the incoming Trump administration is running the DOJ, it will undoubtedly drop the appeal with respect to Nauta and De Oliveira. That is, Garland is doing what he can at this point to help Democrats eventually pressure Trump’s DOJ to publish Smith’s report once there no longer is a Mar-a-Lago case. Rest assured that Judiciary Committee Dems will press Trump’s AG nominee, Pam Bondi, for a commitment on that score. Were I they, I wouldn’t hold my breath.
In any event, I anticipate that either Judge Cannon herself, or the Eleventh Circuit, will soon make clear that the restriction on disclosure of the report relates only to Mar-a-Lago, not January 6 — especially since DOJ has conceded that, for now, the Mar-a-Lago volume should not be publicly disseminated. Hence, we should see Smith’s final report on the January 6 investigation within the next few days . . . although I don’t know how it could add anything to the 2,000-page proffer of his case that he publicly submitted to the federal district court in Washington, D.C., three weeks before Election Day.
And so the Trump special counsel probe ends, not with a bang but a whimper.