Left: FILE – Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo/J. Scott Applewhite, File). Center: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
The Department of Justice is urging U.S. District Judge Aileen Cannon to reject a request from two longtime Donald Trump associates seeking to prevent the limited release of the second volume of former special counsel Jack Smith’s final report on his investigations into the president-elect.
Smith’s final report comprises two volumes. The first, which was publicly released early Tuesday, relates to his investigation and prosecution of Trump in connection with his alleged efforts to subvert the 2020 presidential election. The second deals with Trump allegedly mishandling classified documents and is still under an order from Cannon preventing its release to certain members of Congress.
While the cases against Trump have been dismissed due to long-standing DOJ policy against indicting and prosecuting a sitting president, that is not so for his co-defendants in the classified documents case, Walt Nauta and Carlos De Oliveira.
Cannon controversially dismissed the classified documents case, reasoning that Smith’s appointment as special counsel was unlawful. However, the duo remain in legal jeopardy while a federal appeals court in Atlanta reviews Cannon’s ruling.
Nauta and De Oliveira have been imploring the courts to prohibit the Justice Department from allowing the second volume of Smith’s report to be viewed in chambers “by the Chairmen and Ranking Members of the House and Senate Judiciary Committees upon their request and agreement not to release any information from Volume Two publicly.” The duo have argued that releasing Smith’s report, even in such a limited fashion, would unconstitutionally prejudice their due process rights.
The DOJ on Tuesday argued that Cannon should reject the request from Nauta and De Oliveira, asserting that the release of the report to certain members of Congress would not harm their ability to defend against the allegations while also arguing that Cannon lacks the authority to enforce an injunction on the report.
“First, Defendants Nauta and De Oliveira cannot establish that the Department of Justice’s intention to make Volume Two of the Final Report available for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees will cause Defendants any harm, much less irreparable harm as required to obtain emergency relief,” the government wrote in the filing. “Second, Defendants cannot establish that injunctive relief is appropriate on the merits because this Court lacks the authority to intrude on the Attorney General’s prerogative to manage the Justice Department’s interactions with Congress, and there exists no other basis to enjoin the Department.”
According to the filing, the government wants to make the report available to members of Congress to facilitate lawmakers’ ability to legislate “wisely and effectively” while “exercising oversight of Executive Branch agencies.” Similar measures have been taken in the past, as congressional committees were permitted in camera review investigation reports from former special counsel Robert Mueller during his investigation into foreign election interference, per the filing.
Additionally, under the terms of the proposed release, only four members of Congress would have access to the report under circumstances that would “significantly reduce, if not eliminate, the chances of a prejudicial leak of information.”
The DOJ further argued that even if Smith was unlawfully appointed, as Cannon previously ruled, the special counsel’s team still worked for the attorney general, who “is vested with the authority to supervise all officers and employees of the Department.”
“There can be no serious question that the Attorney General had, at a minimum, the statutory authority to hire Jack Smith and his staff as employees of the Department of Justice,” the filing states (citations omitted). “The Attorney General is the Senate-confirmed head of the Department of Justice and is vested with the authority to supervise all officers and employees of the Department. The Attorney General thus has authority to decide whether to release an investigative report prepared by his subordinates.”
The DOJ added that the defendants offered “no cognizable basis for restricting the Attorney Generals’ discretion in this regard.”
Cannon has ordered the parties to appear in her Florida courtroom on Friday for a hearing on the issue of releasing the second volume of Smith’s report.
