Special counsel Jack Smith’s highly anticipated two-volume final report isn’t set to be a bombshell about Donald Trump’s criminal behavior.
There’s every indication that the two-volume report will provide a fuller account that chronicles how Trump allegedly plotted to disrupt the democratic process in 2020 and attempted a cover-up of his classified documents hoarding at Mar-a-Lago. The report is expected to go slightly beyond the D.C. and Florida indictments, potentially including new quotes from witness interviews with federal investigators to build an overall fact pattern that describes a criminal conspiracy.
That much can be drawn from the description of the final report by defense lawyers who reviewed a draft over the weekend at the counsel’s government offices in Washington and were only allowed to take handwritten notes. In all, it’s meant to be a summation of a criminal investigation that was delayed at every step and ultimately fizzled out with Trump’s election.
But the details appear unsettling enough that Trump’s lawyers are trying to block its release, convincing Trump-appointed U.S. District Judge Aileen Cannon to block Smith from releasing it, in an unprecedented and jurisdictionally dubious move Tuesday. In a court filing, Trump’s lawyers said, “The final report contains evidence that has not been made public and is not or may not be admissible, that was the subject of grand jury proceedings, and that may violate one or more privileges.”
Trump’s lawyers’ actions have turned national attention to what was otherwise expected to be a quiet exit from Smith, complicating the final throes of the special counsel’s work.
Hours after hearing from Trump’s defense team, Cannon forbade the Department of Justice from releasing the final report, ordering the court clerk to send a copy of her order straight to Attorney General Merrick Garland and Smith’s team.
She went as far as blocking its release until three days after the appellate court that oversees her district weighs in — a move that could be seen as overstepping her authority. Notably, it also complicates any attempt to make the report public before Trump’s inauguration on Jan. 20.
In a letter to the AG on Monday, Trump’s defense lawyers said Volume I asserts that Trump was “the head of the criminal conspiracies” and harbored a “criminal design” in the Jan. 6 coup case, while Volume II describes how “Mr. Trump violated multiple federal criminal laws” and engaged in “criminal conduct” at Mar-a-Lago.
“They thought they were going to use this to beat me,” Trump said about Cannon’s order during a Tuesday midday press conference. “If they’re not allowed to issue the report, that’s the way it should be … why should he be allowed to write a fake report? That’s great news.”
There’s particular reason to believe the report could include witness statements from, among others, Trump valet Walt Nauta and Mar-a-Lago’s property manager, Carlos De Oliveira. Defense lawyers claim that releasing the report would improperly “prejudice” their ongoing cases, given that federal prosecutors are no longer pursuing the Mar-a-Lago case against Trump but continue to charge Nauta and De Oliveira with making false statements and conspiring to obstruct investigators.
“It is totally unethical for prosecutors to issue a public report smearing my client with their one-sided version of events, while at the same time insisting on proceeding with their appeal in the hope of having the case remanded for trial. You think these guys would give up the ghost already,” De Oliveira defense lawyer John Irving told NOTUS on Tuesday.
The clock is ticking. The special counsel’s office notified Cannon on Tuesday morning that it can only “commit” to certain looming deadlines: Smith won’t give Attorney General Merrick Garland the Mar-a-Lago portion of the report until after 1 p.m. Tuesday, and the AG will not release it until after 10 a.m. Friday.
For now, Cannon’s order doesn’t stop Smith from turning it in, but the order does block Garland from taking it outside the DOJ. It’s also unclear how Cannon can block the AG from releasing a report he alone is authorized to make public or how she has the authority to block a report that’s half made up of a D.C. case that was litigated entirely far outside her jurisdiction in South Florida.
The report is the last major effort expected from Smith, who is ready to close down his two-year operation. The special counsel’s offices now have mostly emptied-out desks, according to a person familiar with the setup.
Jay Bratt, the DOJ’s counterintelligence chief within the department’s national security division and a top prosecutor on Smith’s team, held his retirement party on Friday. Trump’s defense team was given a hard 2 p.m. deadline on Monday to provide any feedback or objections to the draft, according to newly filed court documents.
“There is every reason to believe that the government will issue the final report within the next three days,” Trump’s lawyers wrote to an appellate court Tuesday morning.
Now, Trump’s team’s actions, Cannon’s order and rapid-fire appeals could tie up its release. Additionally, other government agencies may still have to review sections to ensure that sensitive national security material is not compromised. The legal maelstrom means that the report’s release could come just days or hours before Trump’s inauguration, if it comes out at all.
Trump’s lawyers are trying to block the release by once again mounting a challenge to Smith’s appointment. Although that matter is currently under consideration by the 11th Circuit Court of Appeals (as a result of Cannon dismissing the Mar-a-Lago case last year), this new battle over the report threatens to erect a hefty constitutional conflict that could make its way to the Supreme Court.
Having already seen Smith’s report draft, Trump’s lawyers claimed it “promises to be a one-sided, slanted report” from “the unconstitutionally funded acts of an unconstitutionally appointed individual whose authority stems from unlawful regulations.”
In a separate letter to Garland, Trump’s legal team went on to lambaste Smith as an “out-of-control private citizen unconstitutionally posing as a prosecutor” whose work would amount to “nothing more than a lawless political stunt, designed to politically harm President Trump and justify the huge sums of taxpayer money Smith unconstitutionally spent on his failed and dismissed cases.”
A closer look at the making of the most recent major special counsel investigation into Trump — special counsel Robert Mueller’s probe and report — could prove elucidating into what Smith’s team could be dealing with at the moment. Smith’s report has likely been in the works for some time, and it faces a rocky road ahead.
The Mueller report was rife with new details about the two-year operation — even while it still managed to frustrate those who sought to hold Trump accountable when it sidestepped the question of whether Trump broke the law, citing a DOJ policy that doesn’t allow for criminally charging a sitting American president. The 456-page tome was in the works in May 2018, a full year before its eventual release, according to “Interference,” a memoir written by three of the top prosecutors on that team that was published last year.
As prosecutors discussed the possibility of subpoenaing the president over concerns about obstruction of justice, senior prosecutor Jim Quarles resorted to gallows humor.
“Jim tried to make light of the situation. When he walked around the office during this period, he would quip as he passed colleagues, ‘Pardon me … no seriously — pardon me,’” the authors recall.
Smith’s team faces the same reality, with Trump able to pardon Nauta and De Oliveira.
The book describes how, even as they were still drafting the report, special counsel prosecutors remained in close contact with the DOJ’s principal associate deputy attorney, who probed Mueller’s legal reasoning and conclusions. Smith could be facing the same sort of scrutiny from DOJ leadership.
Ultimately, Mueller’s team blew its Friday deadline by a week and pulled an all-nighter at the very end — only to have the report’s public release bungled by then-Attorney General Bill Barr, who mischaracterized its findings in an attempt to provide a less embarrassing reality to Trump. It took 17 days for Mueller’s team to suggest specific redactions in the report, pushing back the release of the report by nearly four weeks.
Should Smith’s report stay under wraps past Trump’s inauguration, his appointed attorney general — currently slated to be Pam Bondi — could prevent its release entirely.
Jill Wine-Banks, one of the federal prosecutors during the Watergate trial, said the American public deserves to see the results of this historic two-year effort.
“The report should be out. They’ve spent a lot of time and money on this. They’ve accumulated evidence. The American people have a right to know,” she said.
Wine-Banks, who has called for President Joe Biden to issue preemptive pardons to those on Trump’s revenge list, said the report will also make clear that prosecutors were legally and morally justified in pursuing both criminal cases against Trump.
“We’ve seen enough evidence to know this wasn’t a fraud or a fake. Any prosecution he might want to bring in retaliation is simply that — retribution, unjustified, evil and mean. It’s what dictators do,” she said.
—
Jose Pagliery is a reporter at NOTUS.