Federal judge to decide fate of Jack Smith’s final report on Trump’s classified docs case

(WASHINGTON) — Six months after a federal judge dismissed special counsel Jack Smith’s classified documents case against Donald Trump and his two co-defendants, defense attorneys are set to return to Florida to try to prevent the limited release of Smith’s final report detailing his investigation.

U.S. District Judge Aileen Cannon, who tossed out the case based on the constitutionality of Smith’s appointment, is considering whether to prevent Attorney General Merrick Garland from allowing select members of Congress to view the volume of Smith’s report covering his probe — with Friday’s hearing set to serve as an epilogue to the criminal case that legal experts say once posed the most significant legal threat to the former president.

Earlier this week, Garland released the first volume of Smith’s report related to Trump’s alleged efforts to overturn the results of the 2020 election, while withholding the second volume related to Smith’s classified documents probe because Trump’s former co-defendants are still appealing the case.

Garland has proposed allowing the chairmen and ranking members of the House and Senate Judiciary Committees to see the volume, but Trump’s former co-defendants have argued that even a limited release of that volume should be blocked.

“The Final Report relies on materials to which Smith, as disqualified special counsel, is no longer entitled access — making his attempt to share such materials with the public highly improper,” lawyers for longtime Trump aide Walt Nauta and Mar-a-Lago staffer Carlos De Oliveria argued in a court filing, echoing the same argument about the constitutionality of Smith’s appointment that got the criminal case thrown out.

The defense lawyers have argued that releasing the report to members of Congress could result in a leak of its findings, which would keep Nauta and De Oliveria from receiving a fair trial if the appeals court reverses the case’s dismissal.

“Once the Report is disclosed to Congress, this Court will effectively lose its ability to control the flow of information related to privileged and confidential matters in a criminal proceeding,” lawyers for Nauta and De Oliveira wrote. “That makes delaying the issuance of the Final Report until this matter is resolved essential, as there will be no way to put the proverbial cat back into the bag after the Final Report is shared with Congress, and no way to control congressional speech regarding the pending criminal case.”

Trump pleaded not guilty in June 2023 to 37 criminal counts related to his handling of classified materials, after prosecutors said he repeatedly refused to return hundreds of documents containing classified information. The former president, along with Nauta and De Oliveira, also pleaded not guilty in a superseding indictment to allegedly attempting to delete surveillance footage at Trump’s Mar-a-Lago estate.

Lawyers for the Department of Justice and U.S. Attorney Markenzy Lapointe have downplayed the risks of releasing Smith’s report on the case, arguing that the sensitive work products of other special counsels have been reviewed by members of Congress using secure protocols. The four members of Congress who would access Smith’s report would be bound by confidentiality, and would be limited to an on-camera review of the report in which they would be prohibited from taking notes.

“[T]his argument rests entirely on conjecture and disregards the options available to the Court to protect the Defendants from prejudice were this speculative chain of events to come to pass,” prosecutors argued.
While Judge Cannon cast the legitimacy of Smith’s appointment into doubt, prosecutors argued that the question of releasing the report no longer relates to Smith — who resigned last week after handing the report in — and is fully in the hands of Garland.

“The Attorney General thus has authority to decide whether to release an investigative report prepared by his subordinates,” their filing said.

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