President-elect Donald Trump in the Oval Office of the White House for a meeting with President Joe Biden in November. (Jabin Botsford/The Washington Post)
FORT PIERCE, Florida - A federal judge on Friday will consider whether to block the Justice Department from sharing with key congressional leaders a report by special counsel Jack Smith on the classified documents investigation involving President-elect Donald Trump.
Trump’s lawyers want to keep Judiciary committee leaders from getting the report at least until Monday’s inauguration - and perhaps, as a result, for good.
U.S. District Judge Aileen M. Cannon has scheduled an afternoon hearing to weigh their arguments that prosecutors’ plans for a limited disclosure of Smith’s findings into Trump’s alleged mishandling of classified documents and obstruction of efforts to retrieve them would undermine his presidential transition “and his ability to govern our nation going forward.”
The court battle comes after Cannon’s controversial decision last year to dismiss charges Smith’s office brought against Trump and two co-defendants over those allegations and just days after Attorney General Merrick Garland made public another portion of the special counsel’s report. That volume detailed what Smith described as Trump’s “unprecedented criminal effort” to overturn the results of the 2020 election.
The remaining portion could provide the fullest accounting to date of the evidence Smith’s team amassed in their classified documents investigation, the thinking behind his prosecutorial decisions, and his estimation of the strength of the case had they been able to bring it to trial.
Garland has said he does not intend to publicly release the classified documents volume of Smith’s report as he did the portion dealing with Trump’s alleged election-interference efforts. Instead, the attorney general has proposed sharing the volume only with the chairs and ranking members of the House and Senate Judiciary Committees - and only upon a promise that they will not divulge the contents.
That’s because the Justice Department continues to appeal Cannon’s earlier order throwing out the classified documents case and could in theory still prosecute Trump’s former co-defendants if an appeals court agrees to reinstate the indictment. Cannon broke with decades of legal precedent last summer in ruling Smith had been unlawfully appointed and, therefore, the charges against Trump and his co-defendants were void.
Though Trump is no longer a party to the case, Garland agreed with concerns raised by Smith that publicly releasing the classified documents report could unfairly prejudice co-defendants Waltine Nauta and Carlos De Oliveira - both longtime Trump employees.
But prosecutors argue Trump has no standing to contest the report’s release and Cannon no longer has the authority to block it. In a court filing earlier this week, they detailed the ground rules under which they proposed to share Smiths’ findings with the leadership of the House and Senate committees.
Those members of Congress would have to review the document under supervision from a Justice Department official and would not be able to keep a copy of the report, take notes, or take photographs of its pages, government lawyers said.
“These precautions significantly reduce, if not eliminate, the chances of a prejudicial leak of information,” government lawyers wrote in their filing.
But attorneys for Trump, Nauta, and De Oliveira responded that those rules were not sufficient. There is no way to enforce any promise of confidentiality, they argued in court filings, given that remarks by lawmakers on the floor of Congress are constitutionally shielded from prosecution.
“The ranking members could, for example, stand on the floor of the House or Senate and disclose the entire contents of Volume II, without fear of any legal consequences,” Trump lawyers John F. Lauro and Gregory M. Singer wrote.
Their filing pointed to public statements harshly critical of Trump made by Rep. Jamie Raskin (D-Maryland) and Sen. Dick Durbin (D-Illinois) - the ranking Democrats of the House and Senate Judiciary Committees - following the public release of the first half of Smith’s report on Tuesday.
“These political actors will have every ability and incentive to use such information to undermine President Trump’s transition,” Lauro and Singer wrote. “Nor is there any material doubt the ranking members will do so, given their immediate politicking on Volume I of Smith’s report.”
Any leaks of Smith’s findings from Trump’s Democratic critics - with no ability for the public to read the report themselves - “risks being even more prejudicial than disclosure of Volume II,” attorneys for Nauta and De Oliveira said.
Cannon has given no indication of how quickly she intends to rule on the matter, and, for Garland, the clock is running out. Smith resigned his post last week, after delivering his report, Garland is about to step down as leader of the Justice Department, and Trump is scheduled to be sworn in as president on Monday.
If Cannon rules in favor of Trump and his co-defendants or simply delays any decision until next week, it is exceedingly likely that the president-elect’s Justice Department would seek to keep the classified documents report under wraps for good. Trump has said he intends to nominate to top positions in the department some of the same lawyers who defended him in his criminal cases and fought the release of the report.
But the Justice Department potentially still has one card left to play, which attorneys for Nauta and De Oliveira noted in a court filing Thursday.:
Prosecutors could drop their appeal of Cannon’s order throwing out the classified documents case. That would eliminate any further concern over the future trial rights of Trump’s co-defendants and remove any remaining jurisdiction Cannon might have over the case.
Though it’s unlikely Nauta and De Oliveira would ever be prosecuted by Trump’s Justice Department, even if the government were to prevail on appeal, prosecutors have continued to challenge Cannon’s decision because they fear it could have wider implications for special counsel appointments going forward.
Still, lawyers for Nauta and De Oliveira wrote: “The government can easily separate itself from the powers of this court - powers that it does not want to acknowledge exist - by dismissing its appeal of this court’s order.” In a letter to Garland on Thursday, Raskin and other Democrats on the House Judiciary Committee urged the attorney general to do just that.
“It is incumbent upon you to take all necessary steps to ensure the report is released before the end of your tenure, including, if necessary, by simply dismissing the remaining criminal charges against Mr. Trump’s co-conspirators,” they wrote.
Any concerns that dismissing the case could enable further wrongdoing “are outweighed by the many indications that Mr. Trump will simply end the prosecutions … [u]pon taking office anyway and then instruct his DOJ to permanently bury this report.”
