The Department of Justice’s position against releasing Jack Smith’s final report on his Mar-a-Lago prosecution could mean that the dispatch on the secret documents never sees the light of day.
The DOJ on Friday joined President Trump’s two co-defendants in the case, his valet, Waltine Nauata, and a property manager, Carlos De Oliveira, in urging Judge Aileen Cannon to block the volume’s release. Mr. Smith’s report on his prosecution of Mr. Trump for January 6 has been published — and in it the special counsel contends that “but for” presidential immunity, he would have secured a conviction of the 47th president.
Now, the DOJ writes to Judge Cannon that “under no circumstances should the Court order the release of Volume II of Jack Smith’s confidential Final Report.” It was Attorney General Garland who hired Mr. Smith, and it is now Attorney General Bondi who argues that the “decision to release Volume II to outside the Department of Justice should rest with the sound discretion of the Attorney General of the United States.”
The special counsel regulations appear to grant that discretion to the attorney general, who may “determine that public release of these reports would be in the public interest.” The DOJ explains that “it is the Attorney General’s prerogative to determine whether the release of Volume II ‘would be in the public interest.’” Judge Cannon initially reasoned that because the cases against Messrs. Nauta and Oliveira were outstanding on appeal after Mr. Trump’s was dropped, releasing the report would injure their due process rights.
Soon after Mr. Trump took the oath, though, he ordered the Department of Justice to drop the cases against his two employees. Now, they write to Judge Cannon that Ms. Bondi “has given no indication that she intends to release the Report, and that the United States Attorney’s Office for the Southern District of Florida does not intend to revive the charges brought by former alleged Special Counsel Jack Smith.”
Messrs. Nauta and De Oliveira observe, though, that the statute of limitations for the charges that were handed up against them has not yet run out. That means that even though the charges against them were dismissed “with prejudice,” related ones could conceivably be filed. They therefore ask Judge Cannon to extend her “supervision over this exceptionally complex case and continue to enjoin the release of the Report.”
Attorneys for both the DOJ and Messrs. Nauta and De Oliveira write that the two men “endured approximately a year-and-a-half of rampant pretrial publicity and vilification after their indictments were sought by an unconstitutionally appointed prosecutor with unconstitutionally limitless funding, who then went on to use the materials he collected in his unlawful investigation (at continued unconstitutional expense) to craft the Report.”
The determination that Mr. Smith’s appointment was unlawful was first made by Judge Cannon over the summer, when she ruled that his appointment by Mr. Garland was not authorized by statute and that he was unlawfully exercising the powers of a prosecutor. Mr. Smith was never confirmed by the Senate, and was prosecuting war crimes at the Hague when he was hired by Mr. Garland.
Judge Cannon also found that the monies spent by Mr. Smith’s office — more than $50 million all told — were unlawful because of the defect in Mr. Smith’s appointment. She also dismissed the charges, a ruling that was appealed to the 11th United States Appeals Circuit. Ms. Bondi dropped that appeal with respect to Messrs. Nauta and De Oliveira, ending the case.
Mr. Trump took the opportunity during his Friday address at the Grand Hall of the DOJ to reflect: “We had an amazing judge in Florida, and her name is Aileen Cannon.” He added that he thought her “decorum was amazing and that she was brilliant, she moved quickly. She was the absolute model of what a judge should be, and she was strong and tough.” He noted that critics “were hitting her so hard, public relations wise.”
