Appeals court won’t block partial release of special counsel Jack Smith’s Trump report

Washington — A federal appeals court in Atlanta on Thursday rejected a bid to block the release of a portion of special counsel Jack Smith’s final report detailing his investigation and prosecution of President-elect Donald Trump stemming from an alleged plan to subvert the transfer of power after the 2020 election.

The U.S. Court of Appeals for the 11th Circuit denied the request from Walt Nauta, an aide to Trump, and Carlos de Oliveira, the former property manager at Mar-a-Lago, who were charged for their role in allegedly obstructing a separate federal investigation into Trump’s handling of sensitive government records. 

The 11th Circuit granted Smith’s request to drop Trump from the case in late November after he was elected to a second term in the White House because of a Justice Department policy that forbids the prosecution of a sitting president. But federal prosecutors are moving forward with the appeal of a lower court decision dismissing the charges against Nauta and de Oliveira on the grounds Smith was unconstitutionally appointed.

Smith submitted a two-volume final report to Attorney General Merrick Garland on Tuesday evening that detailed his investigations into Trump. The first volume relates to the prosecution stemming from the 2020 election, and the second volume pertains to the president-elect’s alleged mishandling of classified documents after leaving office in 2020.

Garland has pledged to disclose to the public all special counsel reports completed while he was attorney general, and has so far followed through on that pledge, including after the investigation into President Biden’s handling of documents marked classified.

But lawyers for Nauta and de Oliveira earlier this week sought to stop Smith’s report from being made public, arguing it would unfairly prejudice potential future criminal proceedings against them. Defense attorneys simultaneously asked the 11th Circuit and U.S. District Judge Aileen Cannon, who oversaw the documents case, to block the Justice Department from releasing the report. 

Cannon on Tuesday agreed to temporarily block the report’s release until the 11th Circuit resolves the matter, leaving it to the appeals court to decide whether Smith’s work should be made public. Her order remains in effect for another three days, though the appeals court said if the Justice Department would like to seek relief, it could file a notice of appeal. 

The Justice Department declined to comment. Steven Cheung, a spokesperson for Trump, said in a statement Thursday night that “It is time for Joe Biden and Merrick Garland to do the right thing and put a final stop to the political weaponization of our Justice system.”

In filings with the 11th Circuit, the Justice Department asked the court to deny Nauta and de Oliveira’s bid to keep the report shielded from the public, but said Garland would not release the portion that deals with the classified documents case while proceedings involving the two co-defendants are ongoing.

Separately, the president-elect’s lawyers urged Garland in a letter to remove Smith from his post as special counsel and stop the preparation and dissemination of his report.

Prosecutors said the attorney general does plan to disclose to Congress and the American people the first volume of Smith’s report involving the 2020 election case. They said he would make a redacted version of the second volume about the documents case available for review only by the top lawmakers on the House and Senate Judiciary Committees, and only if they agreed not to share information from it.

“This limited disclosure will further the public interest in keeping congressional leadership apprised of a significant matter within the department while safeguarding defendants’ interests,” prosecutors wrote.

Garland on Wednesday informed the top Republicans and Democrats on the Judiciary Committees that Smith had finished his investigation and submitted the two-volume report. The attorney general reiterated his intent to make public the first volume “in furtherance of the public interest in informing a co-equal branch and the public regarding this significant matter,” but would not release the second volume “to avoid any risk of prejudice” to Nauta and de Oliveira.

In their own filing with the 11th Circuit, defense lawyers urged the court to send the dispute back to Cannon’s court for a hearing and, in the meantime, prevent Garland and the Justice Department from issuing Smith’s final report.

“A hearing is necessary to prevent overreach of the federal government to serve political aims at the expense of the individual’s right to a fair trial,” they wrote.

Though Trump is not a party before the 11th Circuit, his lawyers submitted a friend-of-the-court brief urging the court to block the release of Smith’s report.

The report, they claimed, is “nothing less than another attempted political hit job which sole purpose is to disrupt the Presidential transition and undermine President Trump’s exercise of executive power.”