Merrick Garland and Jack Smith (Reuters)
Special Counsel Jack Smith is set to submit two reports on his investigations of Donald Trump to Attorney General Merrick Garland, a step Smith is required by law to take. Will Garland release the reports for everyday Americans to scrutinize? If Garland sticks to his previous public statements, the answer is yes. But in what should be a surprise to no one, Trump and his lawyers -- sounding more than a little desperate -- are trying desperately to keep the reports out of public view. Why? We will have thoughts on that question in an upcoming post. But for now, Garland is expected to make his release decision by the end of the week. In a joint report from The Washington Post (WaPo) and the Microsoft Network (MSN), we get a hint of what might be in the reports and how their releases are likely to be handled. Under the headline "Trump’s lawyers ask AG Garland not to release special counsel report," WaPo's Perry Stein writes:
Donald Trump’s lawyers have read special counsel Jack Smith’s draft report detailing the findings of his two investigations of the incoming president and are urging Attorney General Merrick Garland to fire Smith and block the report’s public release.
It is the latest effort by the president-elect to quash the remnants of the four criminal cases he has faced over the past two years.
Justice Department regulations say special counsels must submit a report explaining their legal decisions at the conclusion of an investigation, though it’s up to the attorney general to decide whether those findings are made public.
During Garland’s tenure leading the agency, he has indicated he would release any special counsel report that reaches his desk, redacting material that he thinks needs to remain out of public view. But an ongoing appeal in one of the two cases against Trump that Smith oversaw means releasing that portion of the report could be more complicated.
In a court filing early Tuesday, Smith said Garland might not make that part of the report public. If the attorney general does release it, Smith said that would not happen before Friday morning at the earliest, giving the court a few days to act.
Friday morning is when Trump is separately scheduled to be sentenced for his conviction in New York state court of falsifying business records related to a hush money payment ahead of the 2016 election. His lawyers are also trying to block that sentencing, saying that even though the judge has made clear he will not give Trump jail time or probation, getting sentenced just days before his inauguration would disrupt the presidential transition.
Trump’s lawyers are making similar arguments about the two-volume special counsel report. One volume focuses on Smith’s investigation into Trump’s handling of classified documents after his first term in the White House. The other focuses on Smith’s probe into Trump’s efforts to overturn Joe Biden’s 2020 presidential election victory.
In a bid to make sure the public remains in the dark, Trump and his lawyers are resorting to nonsensical arguments. It's good to know Team Trump has no shame. Stein reports:
“Releasing Smith’s report is obviously not in the public interest — particularly in light of President Trump’s commanding victory in the election and the sensitive nature of the ongoing transition process,” Trump attorneys Todd Blanche and John Lauro said in a letter to Garland that was included in an emergency motion filed in Florida federal court Monday evening.
The motion was submitted by lawyers for Waltine Nauta and Carlos De Oliveira, Trump’s co-defendants in Smith’s classified-document case. They asked U.S. District Judge Aileen M. Cannon to block the release of Smith’s report, citing her decision last summer to dismiss the classified documents indictment after she ruled Smith was unlawfully appointed.
It's not in the public interest to know about possible criminal activity by their president-elect? That shows how much Team Trump respects the public's right to know, which usually includes the right to view court documents, which generally are treated as public. As for Trump's "mandate," it turned out to be weak. He received 77,284,118 votes for 49.8 percent -- or less than 50 percent of the vote. Kamala Harris won 74,999,166 votes for 48.3 percent. Trump's margin of victory was 1.5 percent.
Excluding Trump's 46.2 percent in 2016, you have to go back to Grover Cleveland's 46.1 percent in 1892 (124 years) to reach such a low margin of victory. A "commanding victory"? Not even by Grover Cleveland's standards.
As for the 2024 election, will Judge Cannon's finding that Jack Smith was unlawfully appointed hold up. WaPo's Stein has doubts:
Cannon’s ruling on Smith broke with decades of legal precedent involving special or independent counsels. The Justice Department is appealing, with Nauta and De Oliveira as defendants. Smith dropped Trump from the appeal because he won the November election and Justice Department policy prohibits prosecuting sitting presidents.
It is unclear whether Cannon, who was nominated to the bench by Trump, would have clear authority to intervene in Garland’s decision on whether to release Smith’s report. But with the litigation against Nauta and De Oliveira ongoing, the co-defendants argued that the report could be detrimental to them and asked Cannon to hold a hearing on the matter.
“These Defendants will irreparably suffer harm as civilian casualties of the Government’s impermissible and contumacious utilization of political lawfare to include release of the unauthorized Report,” their motion said.
The judge who oversaw the D.C. federal election interference case, Tanya S. Chutkan, has indicated she disagrees with Cannon’s decision and believes Smith was rightfully appointed. Chutkan dismissed the D.C. election-interference case at Smith’s request in November, again because of Trump’s election victory.
The letter to Garland that was included in the Florida filings shows that Trump’s attorneys are separately appealing to the attorney general not to release either volume of Smith’s report. Blanche — whom Trump has said he would nominate to be deputy attorney general in his administration — and Lauro cited Cannon’s decision in their letter, saying that if Smith is unlawfully appointed, he should not be able to compile a report.
“The release of any confidential report prepared by this out-of-control private citizen unconstitutionally posing as a prosecutor would be 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,” the letter reads.
The lawyers told the attorney general that Smith allowed them to review the draft report in person in Washington, but complained that they were prohibited from using electronic devices during the review. They asked Garland to fire Smith and said that if he chooses not to, he should allow Trump’s Justice Department — where Blanche, if confirmed, would hold the No. 2 position — to decide what to do with the completed report.
Blanche and Lauro argued that the report disregards the presumption of innocence and said its release would create a storm of negative media attention around Trump, requiring him to defend himself and interfering with his transition to office.
Smith’s office said in its filing Tuesday that his staff was working to finalize the report. Assistant special counsel James Pearce wrote that when Nauta and De Oliveira filed their motion with Cannon seeking to block the report’s release, “the parties were conferring” but the attorney general had “not yet determined how to handle the report volume pertaining to this case.”
Garland appointed Smith in November 2022 to oversee the two federal investigations of the former president, after Trump announced he would again seek the White House. A special counsel has greater independence than a typical prosecutor, though still ultimately reports to the attorney general.
Both cases had been delayed in the appeals courts and were far from reaching a trial when Trump won last year’s election. While much of the evidence against Trump in the two cases was revealed in the indictments and pretrial proceedings, a special counsel report could lay out the strategy the government would have employed against Trump at trial and the full scope of the evidence in the cases.
Before Trump takes office, the Justice Department is also expected to release a report by special counsel David Weiss detailing the investigation of President Joe Biden’s son, Hunter.
A federal jury in Delaware convicted Hunter Biden of gun charges as a result of that investigation, and he separately pleaded guilty to federal tax charges in Los Angeles last year. The president pardoned his son last month.
