Special counsel's Trump report should be partially released, Justice Department tells appeals court

Washington — The Justice Department urged a federal appeals court in Atlanta on Wednesday to clear the way for the release of a portion of special counsel Jack Smith's report detailing his investigations into President-elect Donald Trump.

In court documents filed with the 11th Circuit Court of Appeals, the government wrote that Attorney General Merrick Garland has determined not to release the volume of Smith's report that deals with the classified documents case, so long as criminal proceedings involving co-defendants Walt Nauta and Carlos de Oliveira are pending.

Garland does, however, plan to submit to Congress and the public the first volume of Smith's report, which relates to his investigation and prosecution of Trump stemming from the 2020 presidential election.

"Because the Attorney General has determined not to release to the public Volume Two of the Final Report to the public while defendants' case remains pending—the volume that concerns the proceedings against defendants—an injunction is unnecessary," prosecutors wrote, urging the 11th Circuit to deny the emergency request for an injunction.

They noted that Smith sent his report to Garland on Tuesday and wrote in a cover letter to the attorney general that the portion involving Nauta and de Oliveira should not be released to the public while their cases are pending.

Garland on Wednesday sent a letter formally informing the chairs and ranking members of the House and Senate Judiciary committees that Smith was finished with his probe, had completed the report and the report was ready for release. Garland reiterated that he would not do so unless and until the courts clear the way, and that even if they do, he would not release the volume related to the classified documents probe because of pending cases. 

Justice Department lawyers said a redacted version of the second volume of the report — involving the alleged mishandling of classified documents — would be made available for review only by the top Republicans and Democrats on the House and Senate Judiciary Committees at their request, and if they agree not to release the information publicly.

"This limited disclosure will further the public interest in keeping congressional leadership apprised of a significant matter within the department while safeguarding defendants' interests," prosecutors wrote.

The filing responded to an effort by Trump's former co-defendants, aide Nauta and former Mar-a-Lago employee de Oliveria, to stop the report's release. They argued their cases would be prejudiced by the release of the special counsel's report as the appeals of their cases continue. 

In a subsequent filing to the 11th Circuit, lawyers for Nauta and de Oliveira asked the appeals court to send the dispute back to District Judge Aileen Cannon's court for a hearing and, in the meantime, stop Garland and the Justice Department from issuing Smith's final report.

"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," lawyers for Nauta and de Oliveira wrote. 

Allowing leaders of the House and Senate Judiciary Committees to see the second volume of the report "reflects an improper attempt to remove from the district court the responsibility to oversee and control the flow of information related to a criminal trial over which it presides, and to place that role instead in the hands of the prosecuting authority — who unlike the trial court has a vested interest in furthering its own narrative of culpability," they said.

Defense attorneys earlier this week simultaneously asked the appeals court and Cannon, who oversaw and dismissed the Trump classified documents case, to block Smith and Garland from publicly releasing a summary of the special counsel's findings. Cannon issued an order on Tuesday, temporarily enjoining the Justice Department from publishing the report until the 11th Circuit decides the matter. 

The ongoing litigation is part of a bid by Trump and his allies to prevent federal prosecutors from releasing the contents of Smith's report. Smith revealed he has prepared a two-volume report to present to the attorney general, which prosecutors said was submitted Tuesday evening. Garland has pledged to release to the public all special counsel reports completed under his tenure and has so far stood by that promise, including after an investigation related to President Biden's handling of classified records. 

Smith led two now-defunct investigations into the president-elect, one tied to his alleged efforts to resist the peaceful transfer of power and overturn the results of the 2020 presidential election and another based on accusations that Trump unlawfully retained sensitive government records after he left office in 2021. The probes resulted in criminal indictments against Trump, which have since been dismissed. Trump initially pleaded not guilty and denied all wrongdoing. 

The special counsel and his office withdrew from the case after the 11th Circuit agreed to dismiss the appeal as it pertains to Trump following his election to a second term in November. It is now being overseen by the U.S. attorney in South Florida and other Justice Department lawyers.

Still, Trump's attorneys urged Garland to remove Smith from his position and put a stop to the report's release, according to a letter included in court documents on Monday. 

"Because Smith has proposed an unlawful course of action, you must countermand his plan and remove him promptly. If Smith is not removed, then the handling of his report should be deferred to President Trump's incoming attorney general, consistent with the expressed will of the People," Trump's attorneys wrote.

But prosecutors told the 11th Circuit in their filing that the president-elect has not made any requests to the appeals court and "would have no basis to seek to block the public release of Volume One of the final report," which deals with the investigation and prosecution arising from the alleged efforts to overturn the results of the 2020 election.

In the classified documents case, Trump was charged alongside Nauta and de Oliveira in an alleged scheme to obstruct the federal probe. Both men pleaded not guilty. 

Smith ultimately dropped his bids to prosecute Trump, citing Justice Department rules that forbid the prosecution of a sitting president. But he opted to continue with an appeal of Cannon's decision to dismiss the case against Nauta and de Oliveira to overturn the finding that the special counsel was unlawfully appointed. 

The defendants, as a result, sought to stop the release as the case proceeded.

During a press conference on Tuesday, Trump slammed Smith as a "bad guy" and complimented Cannon, whom he appointed to the federal bench during his first term, as a "brilliant judge."