DOJ To Release Special Counsel Jack Smith's Findings In Trump Jan. 6 Probe

But prosecutors say an expected two-volume report detailing charging decisions for Donald Trump should be partially held back.
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Special counsel Jack Smith’s highly anticipated report on his charging decisions in Trump’s Jan. 6, 2021, election subversion case will be made public, federal prosecutors said Wednesday, but the same cannot be said of information underpinning Trump’s classified documents case.

Details from that now-dismissed classified documents case should be held back from public view, federal prosecutors said Wednesday, because litigation is still underway in Florida against Trump’s valet and his Mar-a-Lago estate property manager.

The disclosure was made in federal appellate court by Deputy Assistant Attorney General Brian Boynton in response to a recent request from Waltine Nauta, Trump’s valet, and Carlos De Oliveira, his property manager, to stop the publication entirely. Boynton said this was unnecessary.

Smith, he wrote, already recommended to Attorney General Merrick Garland that to “avoid any risk of prejudice” to Nauta and De Oliveira, it would be best to release only information about the Jan. 6 charging decisions so long as criminal proceedings are pending against Nauta and De Oliveria.

The report will, however, be available for private review by members of the House and Senate Judiciary Committees.

Lawyers for Nauta and De Oliveria have pushed for dismissal of their case by citing U.S. District Judge Aileen Cannon’s ruling that Smith was unlawfully appointed to investigate Trump.

This image, contained in the indictment against former President Donald Trump, shows boxes of records stored in a bathroom and shower in the Lake Room at Trump's Mar-a-Lago estate in Palm Beach, Florida.
This image, contained in the indictment against former President Donald Trump, shows boxes of records stored in a bathroom and shower in the Lake Room at Trump's Mar-a-Lago estate in Palm Beach, Florida.
via Associated Press

Smith, for his part, has appealed that ruling, and Boynton wrote in Wednesday’s motion that the special counsel’s appointment isn’t even relevant here. The only thing that matters is Garland’s “handling” of the report, Boynton wrote, adding that Cannon’s dismissal did not create a nationwide injunction on special counsels.

In the meantime, Smith has followed department guidance by taking his findings to Garland and leaving it to him to decide whether the reports will go public.

“That should be the end of the matter,” Boynton wrote.

He continued: “To avoid the potential need for further emergency litigation in this Court, the United States respectfully requests that this Court make clear in denying the motion that its resolution of this question should be the last word (absent review by the en banc court or the Supreme Court).”

On Tuesday, Cannon issued an order agreeing to temporarily block the release of the full two-volume report until the 11th Circuit Court of Appeals reached a conclusion on Nauta and De Oliveria’s request to have it stopped. The Trump-appointed judge specified that her order would be in effect for at least three days until after the court made its decision or unless directed otherwise.

“The heart of defendants’ claim for emergency injunctive relief is their assertion that ‘Attorney General Garland is certain to make [the Final Report] immediately public’ and thereby prejudice defendants in the event this Court reverses the dismissal of their indictments. But that prediction is incorrect. Attorney General Garland is committed to ensuring the integrity of the Department’s criminal prosecutions. Considering the risk of prejudice to defendants Nauta’s and De Oliveira’s criminal case, the Attorney General has agreed with the Special Counsel’s recommendation that Volume Two of the Final Report should not be publicly released while those cases remain pending,” Boyton wrote. “There is therefore no risk of prejudice to defendants and no basis for an injunction against the Attorney General.”

As for any continued claims by Trump’s cohorts that Smith was unlawfully appointed, prosecutors urged the appellate court to disregard those theories and recognize that the district court in Florida “never barred” him from performing certain duties, generally speaking, like preparing the report.

“Had it purported to do so, the district court would have had to grapple with the fact that the D.C. Circuit — whose law governs Department headquarters and the Special Counsel’s offices where the Final Report was prepared — has rejected the same Appointments Clause theory that the district court accepted,” Boyton wrote. “The district court with responsibility for the Election Case did so as well.”

Even if everyone agreed that Smith’s appointment was made unconstitutionally, there would not be a “serious question,” the prosecutor wrote, that Garland at minimum had the statutory authority to hire Smith as a DOJ employee.

The Supreme Court decided in 1976 that probe reports can be generated and prepared by individuals who are not appointed as officers of the U.S. if that individual performs tasks for the department that are both “investigative and informative.”

The report’s release is purely up to Garland and does not depend on Smith’s appointment, Boyton added.

In a response filed with the appellate court late Wednesday, lawyers for Nauta and De Oliveria have asked that the question be sent back to Cannon’s court for a hearing.

This is necessary, they argue, because if the full report is disclosed to members of Congress, even with redactions, it could still be leaked, and if it were, there is nothing the court nor the executive branch could do to bind Congress.

“There is no way to restrain members of Congress from disclosing their opinions regarding the report, or from disclosing the contents thereof. Nor is there a way to prohibit them from disclosing the materials to members of their staff, or to prevent members of their staff from then leaking the contents of the report ― or their prejudicial explanations. This country was founded on individual liberty, and those principles underlie the defense request. A hearing is necessary to prevent overreach of the federal government to serve political aims at the expense of the individual’s right to a fair trial,” attorneys for Nauta and De Oliveira wrote.

The attorneys said they are particularly worried that the report will not sufficiently redact grand jury information that was used to charge the men.

It’s “not for the DOJ to decide what grand jury information must be protected from members of Congress,” and that discretion on that matter, they claim, is entirely up to the courts.

“If any grand jury material is to be released to anyone not tasked with enforcing criminal laws, then there must be an adversarial hearing at which the district court determines if release is appropriate and what is appropriately released,” they argue.

When Smith appealed Cannon’s decision to dismiss the case because Smith was unlawfully appointed, federal prosecutors argued her order deviated from logic and legal precedent. The judge’s “contrary view,” Smith wrote in his appeal in August, conflicted directly with the nation’s unbroken history of court rulings — including from the Supreme Court — that imbued the attorney general with the authority to appoint special counsels.

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Notably, neither Trump nor his co-defendants have issued any legal challenge to the appointment of special counsel Robert Hur when Hur was investigating President Joe Biden.

Exactly what will be in the report on Smith’s Jan. 6 charging decisions is uncertain, but much of it is expected to repeat allegations Smith laid out in his indictment against Trump.

Trump and his lawyers have already reviewed both reports and in a court filing made Monday, Trump’s lawyers said that a draft version of the two-volume tome claimed the now-president-elect participated in an “unprecedented criminal effort” and that he was the leader of a vast number of criminal conspiracies.

Trump has maintained his innocence in both the Jan. 6 case and classified documents case since he was first charged in 2023. During a press conference Tuesday he roiled over any release of Smith’s report, calling it and the underlying investigation “fake.”

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