Trump’s co-defendants in classified docs case push to block release of Jack Smith’s final report

(WASHINGTON) — The judge who dismissed former President Donald Trump’s classified documents case should have the final say about the release of special counsel Jack Smith’s final report on the case, lawyers for Trump’s former co-defendants told a federal appeals court Wednesday afternoon.

The attorneys asked the Eleventh Circuit Court of Appeals to defer their decision to U.S. District Judge Aileen Cannon, who could hold a hearing over whether to release the report.

“This reflects an improper attempt to remove from the district court the responsibility to oversee and control the flow of information related to a criminal trial over which it presides, and to place that role instead in the hands of the prosecuting authority — who unlike the trial court has a vested interest in furthering its own narrative of culpability,” lawyers for Trump aide Walt Nauta and staffer Carlos De Oliveria argued.

The arguments came a day after Cannon temporarily blocked the release of Smith’s final report in order to prevent “irreparable harm,” while the matter is considered by the Eleventh Circuit.

Earlier Wednesday, attorneys in the U.S. attorney general’s office said in a filing that Attorney General Merrick Garland does not intend to publicly release the portion of the report related to the classified documents case, though the volume will be available to the ranking members and chairs of the House and Senate Judiciary committees.

Defense lawyers argued in their afternoon filing that the limited disclosure of the full report to the chairmen and ranking members of the House and Senate Judiciary Committees would imperil the case through possible leaks, calling the prosecution a “political case.”

“The functioning of the political press depends on leaks, and if such leaks occur here, there will be no recourse for the defendants whose due process rights are at stake,” the filing said. “The concern about leaks cannot be overlooked; Congress is a political body; its individual members have political aims; and this is a political case.”

Though the defense lawyers acknowledged the politics related to the report in their filing, they accused prosecutors of creating “fake urgency” related to the timing of the report’s release.

“The only counsel in this case now claiming urgency is the Attorney General, but the government’s brief does not explain this urgency,” lawyers wrote in papers filed less than two weeks from Trump’s inauguration. “The Attorney General is an office and not an individual: It will continue in perpetuity. The urgency of political activity is a fake urgency.”

Prosecutors in their filing also indicted that Garland intends to publicly release the portion of the report related to his federal election interference case against Trump.

They argued in their filing that Garland has the “inherent” authority to release the report, and they asked the Eleventh Circuit to vacate Judge Cannon’s order and deny the request from Trump’s former co-defendants, Nauta and De Oliveira, to block the release of the report.

Prosecutors argued that because Smith already transmitted his report to Garland, the argument made by Trump’s former co-defendants about the legitimacy of Smith’s appointment is “moot.”

“The Attorney General is the Senate-confirmed head of the Department of Justice and is vested with the authority to supervise all officers and employees of the Department. The Attorney General thus has authority to decide whether to release an investigative report prepared by his subordinates,” prosecutors said in their filing.

“That authority is inherent in the office of Attorney General; it does not depend on the lawfulness of the Special Counsel’s appointment to take actions as an inferior officer of the United States or on the Department’s specific regulations authorizing the Attorney General to approve the public release of Special Counsel reports,” the filing said.

While defense attorneys had sought to block the release of Volume Two of the report related to the classified documents case — and not Volume One, which covers Trump’s election interference case — Judge Cannon’s order referred only to the “final report,” and not the two volumes within, suggesting that the entire report was blocked from release.

Prosecutors asked the appeals court to “make clear that there is no impediment to the Attorney General allowing for limited congressional review of Volume Two as described above and the publicly release of Volume One.”

The filing makes clear that the decision by Garland to not release the volume of the report involving the classified documents investigation was recommended by Smith himself when it was transmitted to Garland Tuesday evening.

“Because Volume Two discusses the roles of defendants Nauta and De Oliveira, and because those matters remain pending appeal before this Court, the Special Counsel explained in his cover letter to the Attorney General that, “consistent with Department policy, Volume Two should not be publicly released while their case remains pending,”” the filing says.

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 ranging from U.S. nuclear secrets to the nation’s defense capabilities, and took steps to thwart the government’s efforts to get the documents back.

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.

Smith has been winding down his cases against the former president since Trump was reelected in November, due to a longstanding Department of Justice policy prohibiting the prosecution of a sitting president.

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