A federal appeals court on Thursday rejected an attempt to block special counsel Jack Smith from releasing his final report into the two federal criminal cases he brought against Donald Trump but, crucially, did not lift a temporary injunction that prevents it from becoming public.
The order from the US court of appeals for the 11th circuit means the injunction imposed by the US district judge Aileen Cannon who handled the Trump’s prosecution on charges of mishandling classified documents will remain in place for at least three more days.
But the temporary injunction could last longer, Trump’s legal team suggested, pointing to language in Cannon’s decision that made clear the injunction was not her last word on the matter and that she still intended to rule on whether the report should ever be made public.
That language was buried at the end of Cannon’s order on Tuesday, reading: “This Order shall not be construed as the final ruling on the merits of the emergency motion, which remains pending before this court subject to any directives from the Eleventh Circuit.”
With the 11th circuit declining to weigh in, the matter of whether the special counsel report should be publicly released appears set to return to Cannon, the lower court judge who dismissed the documents case in a decision last year that is being challenged by the justice department.
The injunction was the latest in a series of rulings in Trump’s favor, and raised additional questions about whether she even had the jurisdiction to issue such an order given when a case is dismissed and it goes to an appellate court, the lower court loses legal power over it.
What may happen next with the highly-anticipated report, which Smith is required under the regulations to produce to attorney general Merrick Garland now that the cases against Trump are over, is unclear.
Special counsel reports typically generate immense interest given they are appointed to handle politically sensitive cases. They are initially confidential but the attorney general has the power to make it public. It also needs to go to top lawmakers in Congress.
The justice department has said in the case of Smith’s report, it wanted to make the first part about Trump’s efforts to overturn the 2020 election publicly available, and to keep secret the second part about the documents case, since the case is still under appeal.
The department once intended to release the first volume on Friday. But that timeline will now slip as a result of the scramble by Trump’s legal team to prevent any part of the report from being published, which started on Monday with a letter to Garland asking him to keep it under wraps.
At the same time, lawyers for Walt Nauta and Carlos De Oliveira, Trump’s former co-defendants in the documents case, asked Cannon to issue an emergency order enjoining Smith from issuing his report.
The Trump legal team reviewed a draft version of the report last weekend and complained vehemently that it portrayed Trump as orchestrating “criminal conspiracies” and using it as a vehicle to politically damage the incoming administration.
Leaning into Cannon’s dismissal of the documents case, on grounds that Smith was improperly appointed as special counsel because he had not been Senate-confirmed, they also argued that Smith should not even be allowed to write a report in that capacity.
The maneuvering continued on Tuesday, when Nauta and De Oliveira filed with the 11th circuit a near-identical motion as was submitted to Cannon. The denial from the 11th circuit on Thursday night was in response to that request.
While both criminal cases against Trump have been dismissed due to longstanding justice department policy against prosecuting a sitting president, Smith’s report would be the final chance for him to unveil new details or explain his charging decisions for posterity.
Still, it is possible that there will be little new information in the report. Smith’s indictments and pre-trial court filings laid out the accusations in detail and much of it, at least in the 2020 election interference case, was ground covered by the House January 6 committee investigation.
