Smith also dropped Trump as a defendant in the appeal of an earlier dismissal of the Florida classified documents case, but left his two co-defendants as parties in the ongoing litigation.
Co-defendants Waltine “Walt” Nauta and Carlos De Oliveira, former Trump employees, said in court papers this week that publishing the special counsel’s report would violate their rights as co-defendants because the material it contains could harm 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 is resolved, but he intends to release the DC election interference volume imminently.
The documents illustrate the high-stakes decision made by the special counsel and Garland: keep the appeal alive, hoping to overturn a court ruling that the Justice Department believes could be damaging in the future, rather than abandoning the appeal to pave the way for releasing the entire special prosecutor’s report while Garland remains Attorney General.
The appeal centers on Judge Aileen M. Cannon’s decision last summer to dismiss the classified documents indictment after determining that Garland had appointed Smith illegally, a ruling that broke with decades of legal precedent. Justice officials have expressed concern that his ruling could jeopardize not only future special counsels but also any federal prosecutor or senior official serving in a temporary position, the Washington Post reported in August.
While Cannon’s ruling carries no weight outside his courtroom, the Justice Department appears to want to keep the appeal alive to overturn it and nullify his argument entirely.
But it is a complicated proposal and a big gamble, since it will be up to Trump’s Justice Department to complete the appeals process. Many of the lawyers representing Trump and his co-defendants who oppose the release of the report have been tapped by Trump to serve in senior positions at the Justice Department. If confirmed, they could become key decision-makers on whether to stop the appeal or move it forward.
Two of those attorneys, Todd Blanche and Emil Bove, argued in their “friend of the court” briefing Wednesday night that, under Cannon’s ruling, Smith is an illegitimate special prosecutor and should not have the authority to compile and submit a report to the Common Prosecutor.
Trump has said he would nominate Blanche to serve in his administration as a deputy attorney general, the number two position in the Justice Department. Bove will serve as Principal Deputy Attorney General, another powerful position, but one that does not require Senate confirmation.
“The attempt to publish the Ultimate Report demonstrates complete disregard for the district court, which determined that Smith was unconstitutionally appointed and funded,” his filing reads. “Instead of respecting that ruling, Garland seeks to defy the district court by publishing the Ultimate Report in a manner inconsistent with the rule of law and principles of constitutional governance.”
Under Justice Department regulations, special counsels must compile reports upon concluding their investigations. The special prosecutor then presents the report to the Common Prosecutor, who sends it to Congress. It is up to the Attorney General to decide whether to make the report public.
The Justice Department said in a court filing that Smith presented the report to Garland on Tuesday night.
In a Wednesday letter to members of Congress, Garland informed them that Smith completed his investigation.
Attorney General said he would send Smith’s report to them when he receives permission from the court to do so, but that he would share the classified portion of documents only with the leaders of the House and Senate judiciary committees, and only if they agreed not to share them further. . . Garland said he recommends that the volume of the report be made public once the litigation against Nauta and De Oliveira concludes.
“I have determined, upon the recommendation of the special counsel, that volume two should not be made public while the criminal proceedings of those defendants are ongoing,” Garland wrote. “I have determined that once those criminal proceedings have concluded, releasing Volume Two of the report to you and the public would also be in the public interest, consistent with the law and Department policy.”
