Special prosecutor Jack Smith addresses reporters after his grand jury issued more indictments of former president Donald Trump in Washington, D.C. (Bill O’Leary/The Washington Post)
Donald Trump urged a federal appeals court late Wednesday to block the release of both volumes of a special counsel report on his two dismissed federal cases - the latest attempt by the president-elect to fight the final remnants of his criminal cases.
In their filing to the U.S. Court of Appeals for the 11th Circuit in Atlanta, Trump’s lawyers repeated their long-held position: Any action related to the incoming president’s criminal cases, including public release of a report that is required by Justice Department regulations, would violate his right to an orderly transition to the presidency.
Because Trump is no longer a defendant in either of the two federal cases, he filed what is known as a “friend of the court” brief for his arguments to be considered.
Trump is separately asking the Supreme Court to block his planned sentencing Friday in New York state court, where he was convicted in May of 34 counts of falsifying business records related to a hush money payment before the 2016 election. The judge in that case said he will not give Trump jail time or probation, but the president-elect still wants to avoid the sentencing process, which would formally confirm his status as a felon.
The matter before the 11th Circuit involves the two federal investigations of Trump, neither of which went to trial. After the November election, special counsel Jack Smith asked a judge to dismiss Trump’s indictment for allegedly trying to block Joe Biden’s 2020 presidential victory, citing Justice Department policy that prohibits prosecuting a sitting president.
Smith also dropped Trump as a defendant in the appeal of an earlier dismissal of the Florida classified document case, but left his two co-defendants as parties in the ongoing litigation.
The co-defendants - longtime Trump employees Waltine “Walt” Nauta and Carlos De Oliveira - said in court filings this week that releasing the special counsel report would violate their rights as co-defendants, because the material it contains could prejudice them if their case is revived and goes to trial. The Justice Department responded that Attorney General Merrick Garland does not plan to release the volume of the report related to the classified document case until the litigation resolves, but intends to imminently release the D.C. election interference volume.
The filings illustrate the high-stakes decision made by the special counsel and Garland: To keep the appeal alive, in hopes of overturning a court ruling the Justice Department believes could be damaging in the future, instead of dropping the appeal to pave the way for releasing the entire special counsel report while Garland is still the attorney general.
The appeal centers on Judge Aileen M. Cannon’s decision last summer to toss the classified-documents indictment after finding that Garland had appointed Smith unlawfully - a ruling that broke with decades of legal precedent. Justice officials have expressed concern that her ruling could jeopardize not just future special counsels but any federal prosecutor or senior official serving in a temporary position, The Washington Post reported in August.
While Cannon’s ruling does not hold weight outside of her courtroom, the Justice Department appears to want to keep the appeal alive to overturn it and completely quash her argument.
But that’s a tricky proposition and a big gamble, since it will fall to Trump’s Justice Department to complete the appeals process.
Many of the lawyers representing Trump and his co-defendants who are fighting the release of the report have been tapped by Trump to serve in senior Justice Department positions. If confirmed, they could become key decision-makers on whether to halt the appeal or move it forward.
Two of those lawyers, Todd Blanche and Emil Bove, argued in their “friend of the court” briefing Wednesday night that, based on Cannon’s ruling, Smith is an illegitimate special counsel and should not have the authority to compile and submit a report to the attorney general.
Trump has said he would nominate Blanche to serve in his administration as deputy attorney general, the number two position in the Justice Department. Bove will serve as the principal deputy attorney general, another powerful position, but one that does not require Senate confirmation.
“Attempting to publish the Final Report evidences complete disregard for the district court, which found that Smith is unconstitutionally appointed and funded,” their filing reads. “Instead of respecting that ruling, Garland seeks to defy the district court by publishing the Final Report in a manner inconsistent with the rule of law and the principles of constitutional governance.”
Under Justice Department regulations, special counsels must compile reports at the conclusion of their investigations. The special counsel then submits the report to the attorney general, who sends it to Congress. It’s up to the attorney general to decide whether to make the report public.
The Justice Department said in a court filing that Smith submitted the report to Garland on Tuesday night.
In a Wednesday letter to members of Congress, Garland informed them that Smith has completed his investigation.
The attorney general said he would send them Smith’s report when he receives permission from the court to do so, but would share the classified documents portion only with leaders of the House and Senate judiciary committees, and only if they agreed not to share them further. Garland said he recommends that that volume of the report be made public once the litigation against Nauta and De Oliveira concludes.
“I have determined, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing,” Garland wrote. “I have determined that once those criminal proceedings have concluded, 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.”
