Special counsel Jack Smith turned in his final report to Attorney General Merrick Garland and departed the Department of Justice on Saturday, but whether the public will be able to access the report remains uncertain.
Prosecutors are at the mercy of Judge Aileen Cannon or 11th Circuit Court judges, both of whom have been entertaining arguments over the past week from President-elect Donald Trump and his co-defendants in Florida that the report should stay under wraps.
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Smith’s report is two volumes, each corresponding to the two criminal cases he brought against Trump. The first one addresses the special counsel’s prosecutorial decisions in the Jan. 6 case in Washington, D.C. Smith was forced to terminate the case when Trump won the election because of a DOJ policy that prohibits prosecutions of sitting presidents.
The second volume concerns the classified documents case in Florida, which Smith also terminated against Trump but kept intact for Trump’s two co-defendants, Walt Nauta, and Carlos De Oliveira.
Nauta and De Oliveira have urged Cannon, a Trump appointee, to block Garland from releasing the entire special counsel report, saying it would prejudice them as they continue fighting their charges. Trump submitted an amicus brief supporting their argument.
Garland has indicated that he intends to make volume one public and make volume two available only to the top Republicans and Democrats on the House and Senate Judiciary committees.
Cannon has put a wrench in Garland’s plans by temporarily blocking the whole report from being released while she hears arguments from Nauta and De Oliveira about it. It is unclear when she or the 11th Circuit will issue a final order on the matter, but neither report is likely to see the light of day anytime soon if a decision is not made before Trump takes office in a week.
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Prosecutors told Cannon in a filing on Sunday that the first volume of the report mentions the classified documents case in Florida only twice and that the report is entirely irrelevant to Nauta and De Oliveira. The prosecutors made similar remarks to the 11th Circuit as they implored the appellate judges to quickly step in and overrule Cannon’s temporary order.
The first volume “has nothing to do with these defendants, and the district court had no authority to enjoin the release of a report about a different case against a different defendant that was brought (and since dismissed) in a different court,” prosecutors wrote to the appellate court.
Trump’s attorneys, meanwhile, have fumed over the prospect of the report being released after they had a chance to review a draft of it in Washington a week ago. In a letter to Garland, they said that putting out the report would cause a “media storm of unfair criticism” that would interfere with Trump’s transition into the White House.
They also pointed to Cannon’s decision earlier this year to toss out all of the classified documents charges against Trump and his co-defendants after she found that Smith’s appointment as special counsel violated the Constitution. Smith has an appeal to her decision pending against Nauta and De Oliveira.
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Trump’s attorneys said the report functioned as a “partisan weapon” and that in it, Smith criticizes X, “baselessly attacks” Trump’s incoming administration officials, and affords Trump no presumption of innocence.
“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,” the attorneys wrote.