Smith also dropped Trump as a defendant in the appeal of an earlier dismissal of the Florida classified document case, but left his two co-defendants as parties in the ongoing litigation.
The co-defendants – longtime Trump employees Waltine “Walt” Nauta and Carlos De Oliveira – said in court filings this week that releasing the special counsel report would violate their rights as co-defendants, because the material it contains could prejudice 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 resolves, but intends to imminently release the DC election interference volume.
The filings illustrate the high-stakes decision made by the special counsel and Garland: to keep the appeal alive, in hopes of overturning a court ruling the Justice Department believes could be damaging in the future, instead of dropping the appeal to pave the way for releasing the entire special counsel report while Garland is still the Attorney-General.
The appeal centres on Judge Aileen M. Cannon’s decision last summer to toss the classified-documents indictment after finding that Garland had appointed Smith unlawfully – a ruling that broke with decades of legal precedent. Justice officials have expressed concern that her ruling could jeopardise not just future special counsels but any federal prosecutor or senior official serving in a temporary position, the Washington Post reported in August.
While Cannon’s ruling does not hold weight outside of her courtroom, the Justice Department appears to want to keep the appeal alive to overturn it and completely quash her argument.
But that’s a tricky proposition and a big gamble, since it will fall to Trump’s Justice Department to complete the appeals process. Many of the lawyers representing Trump and his co-defendants who are fighting the release of the report have been tapped by Trump to serve in senior Justice Department positions. If confirmed, they could become key decision-makers on whether to halt the appeal or move it forward.
Two of those lawyers, Todd Blanche and Emil Bove, argued in their “friend of the court” briefing on Wednesday night that, based on Cannon’s ruling, Smith is an illegitimate special counsel and should not have the authority to compile and submit a report to the Attorney-General.
Trump has said he would nominate Blanche to serve in his administration as Deputy Attorney-General, the No 2 position in the Justice Department. Bove will serve as the principal Deputy Attorney-General, another powerful position, but one that does not require Senate confirmation.
“Attempting to publish the Final Report evidences complete disregard for the district court, which found that Smith is unconstitutionally appointed and funded,” their filing reads. “Instead of respecting that ruling, Garland seeks to defy the district court by publishing the Final Report in a manner inconsistent with the rule of law and the principles of constitutional governance.”
Under Justice Department regulations, special counsels must compile reports at the conclusion of their investigations. The special counsel then submits the report to the Attorney-General, who sends it to Congress. It’s up to the Attorney-General to decide whether to make the report public.
The Justice Department said in a court filing that Smith submitted the report to Garland on Tuesday night.
In a Wednesday letter to members of Congress, Garland informed them that Smith has completed his investigation.
The Attorney-General said he would send them Smith’s report when he receives permission from the court to do so, but would share the classified documents portion only with 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, at the recommendation of the Special Counsel, that Volume Two should not be made public so long as those defendants’ criminal proceedings are ongoing,” Garland wrote. “I have determined that once those criminal proceedings have concluded, releasing Volume Two of the report to you and to the public would also be in the public interest, consistent with law and Department policy.”
