Donald Trump’s lawyers made a last-ditch attempt to block special counsel Jack Smith from releasing his final report into the two federal criminal cases he brought against the president-elect, asking the attorney general to prevent its completion.
The Trump lawyers also took formal legal action and asked the federal judge who dismissed one of the cases to intervene with a court order prohibiting Smith from making public some of the evidence from that prosecution.
Under the regulations, special counsels are required at the end of their investigation to produce a final report explaining any charging decisions. Given special counsels are appointed to handle politically sensitive cases, their reports typically generate immense public interest.
The twin actions on Monday amount to a long-shot effort by Trump to prevent the report into the case over his retention of classified documents and the case over his attempts to overturn the results of the 2020 election from ever becoming public.
“We write on behalf of President Trump to demand that Smith terminate all efforts toward the preparation and release of this report,” the Trump lawyers, including Todd Blanche, whom Trump nominated to be his deputy attorney general, wrote in a 12-page letter to the attorney general, Merrick Garland.
The Trump lawyers reviewed a draft copy of the report in Washington over the weekend. The attempt to stave off the release of any of its contents appears to come from their vehement objection to the report concluding that Trump effectively orchestrated criminal conspiracies.
Final reports are initially confidential when a special counsel sends them to the attorney general, but the attorney general can then choose how much should be made public – and Garland has previously pledged to release at least some of contents of Smith’s report.
Trump’s lawyers objected to Smith even being allowed to complete a report and asked that Garland remove him from his post. If Garland disagrees and Smith produces a report, the decision on whether it should become public should be left to the incoming attorney general, the lawyers suggested.
The lawyers leaned heavily into their contention that Smith was improperly appointed because he was not confirmed by the Senate before he took the job – the basis on which the US district judge Aileen Cannon dismissed the classified documents case against Trump.
They argued that because Smith decided to drop his appeal against that ruling after Trump won the election, Cannon’s ruling was binding. “Judge Cannon’s decision is a final judgement with issue-preclusive effect on these issues,” the lawyers wrote.
The lawyers accused Smith of using the two-volume report as a vehicle to damage Trump politically by using language that declared he engaged in criminal conduct, and in an ironic twist, complained that Smith was interfering in the transfer of power by preventing a smooth transition.
“Public release of a report by Smith would also disrupt the ongoing transition process and violate the Presidential Transition Act,” the lawyers wrote. “Creating and releasing a prejudicial report to the public would violate these commands by giving rise to a media storm of false and unfair criticism.”
The lawyers also complained that the report also went after other anticipated members of Trump’s incoming administration, which they suggested could sink their nominations at their Senate confirmation hearings. It was not clear which nominees the lawyers were referencing.
The letter to Garland was attached to a motion filed by Trump’s former co-defendants in the classified documents case: Walt Nauta and Carlos De Oliveira, two employees charged with helping Trump obstruct the criminal investigation by lying to the FBI.
The “emergency motion” filed by lawyers for Nauta and De Oliveira asked for a hearing to hash out the legal arguments but primarily sought a court order that would block the justice department from releasing a report at least on the documents case, since prosecutors are still pursuing an appeal to reinstate charges against the two men.
Whether Cannon has the jurisdiction over the matter is unclear. After she dismissed the case over the appointment of Smith as special counsel, the justice department moved to challenge her ruling at the US court of appeals for the 11th circuit, which currently has control of the case.
