11th Circuit allows release of Trump Jan. 6 special counsel report
Special counsel Jack Smith agreed to dismiss the election interference indictment after Trump’s election victory, citing Justice Department regulations prohibiting the prosecution of a sitting president. (Photo by Ricky Carioti/The Washington Post)
A federal appellate court has cleared the way for the Justice Department to publicly release special counsel Jack Smith’s report on Donald Trump’s efforts to undo the results of the 2020 election, although the timing of that release remains unclear.
A separate portion of the document—detailing Smith’s investigation into Trump’s alleged mishandling of classified documents—appears likely to remain under wraps for now.
The ruling, issued by the U.S. Court of Appeals for the 11th Circuit in Atlanta, came in response to a flurry of emergency filings in which the president-elect and two of his former co-defendants in the documents case urged courts to block the release of any part of the report.
While the decision could still be appealed, the ruling set the stage for a possible release of a thorough public accounting of Smith’s election interference case against Trump days before he is again sworn in as president. It may not happen immediately, however. A lower court judge has barred the release of the report until at least three days after the 11th Circuit decision.
Many of those details were divulged in a lengthy legal brief Smith filed last year detailing the evidence his team had amassed. But Smith’s report could offer a clearer picture of the material as well as insights into the strategy the government would have employed had that historic set of charges against Trump gone to trial.
Smith agreed to dismiss the election interference indictment last year after Trump’s election victory, citing Justice Department regulations prohibiting the prosecution of a sitting president.
A federal judge in Florida had already thrown out the separate set of charges Smith’s office was pursuing against Trump and two of his longtime employees, Waltine Nauta and Carlos De Oliveira, concluding that Smith was unlawfully appointed by Attorney General Merrick Garland and therefore the charges he had brought were void.
The Justice Department is appealing that decision before the 11th Circuit, though Smith dropped Trump as a defendant once he was elected. It will fall to Trump’s appointees leading the Justice Department to decide how to handle the appeal once he takes office. Trump has said he will appoint several of his own defense lawyers to top positions in the agency—including Todd Blanche, his pick for deputy attorney general, the No. 2 position in the department.
Blanche, who has represented Trump in three of his four criminal cases, co-wrote a brief filed with the 11th Circuit late Wednesday arguing the entirety of Smith’s report should be withheld from public view because its revelations were likely to interfere with Trump’s transition. The filing was co-written by Trump attorney Emil Bove, who the president-elect has said will be principal deputy attorney general, a position that does not require Senate confirmation. Bove is expected to serve as acting deputy attorney general while Blanche awaits Senate confirmation for his role.
Blanche, Bove, and attorneys for Nauta and De Oliveira were recently given the opportunity to review the contents of the special counsel report. In pushing to keep it under wraps, they have leaned heavily on the claim that Smith was unlawfully appointed.
“The report is nothing less than another attempted political hit job which purpose [sic] is to disrupt the presidential transition and undermine President Trump’s exercise of executive power,” Blanche and Bove wrote.
In a court filing Wednesday, Justice Department lawyers said Smith and Garland had agreed the special counsel’s report on the classified documents investigation should not be publicly released until the litigation involving Nauta and De Oliveira had concluded.
Releasing the portion detailing Smith’s election interference case would serve the public interest, they contended.
Garland said he intended to share a redacted version of Smith’s report on the classified documents probe with only the chairs and ranking minority-party members of the House and Senate Judiciary Committees—and only if those lawmakers promised not to share the information with others.
But lawyers for Nauta and De Oliveira argued there was no way to prevent those members of Congress or their staffs from leaking the report or its conclusions. They urged the 11th Circuit to let U.S. District Judge Aileen M. Cannon—the Trump appointee who had overseen the classified documents case before dismissing the charges—decide whether Smith’s report should be released.
Cannon, a Trump appointee whose rulings on his behalf have raised eyebrows in legal circles and were twice overturned by the 11th Circuit, issued an order earlier this week barring the Justice Department from releasing the report until the appeals court had weighed in.
