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Left: FILE – Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo/J. Scott Applewhite, File). Center: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
The U.S. Department of Justice on Thursday aimed to keep President-elect Donald Trump from intervening in the criminal case against his former co-defendants in the Mar-a-Lago documents matter.
Technically, the extant proceedings concern Waltine “Walt” Nauta, Trump’s personal valet, and Carlos de Oliveira, Mar-a-Lago’s chief of maintenance, both of whom face federal charges. Those charges, however, are almost certain – and widely expected – to be dropped by the incoming Trump administration in a matter of days.
What remains is a time-limited dispute about whether or not a federal judge should allow the limited release of the second volume of former special counsel Jack Smith’s final report on his Trump investigations.
Earlier this month, U.S. District Judge Aileen Cannon set a hearing for Jan. 17 to deal with the remaining issues related to the report.
After that hearing, there is the real possibility the second volume of Smith’s final report could be released to the chairs and ranking members of the House and Senate Judiciary Committees.
And, according to DOJ attorneys, that’s the only issue left after weeks of legal jockeying for position and concomitant court orders.
On Jan. 7, Trump filed his motion to intervene in the case – rubbishing Smith and the effort to publicize the report in no uncertain terms.
“Releasing the Final Report is also improper because this is not Smith’s case anymore; he has been disqualified by a court of law and is now proceeding as a rogue actor with a personal and political vendetta against the Defendants,” the motion says. “Our system simply does not allow a disqualified prosecutor to withdraw from an unlawful appeal only then to embark on a media mudslinging tour through the issuance of a highly detailed and one-sided press release describing the events charged in the superseding indictment and the Government’s theory of prosecution as it relates to those events.”
In the week and two days since, however, several issues were made moot. And, the DOJ itself took on the mantle of the party interested in having the full report, inclusive of the second volume, released.
As the case moved up the appellate ladder in a relatively quick fashion, Nauta and De Oliveira claimed the government was, essentially, waging a dirty tricks campaign and trying to game the judicial system. The co-defendants further accused the DOJ of moving to publicize a report that would jeopardize their constitutional rights.
The steady march of motions and orders, and orders and motions, and the resulting paring-down of live disputes, was remarked upon in the government’s opposition to Trump’s motion for leave to intervene.
“Since President-elect Trump submitted his Motion for Leave to Intervene, this Court has denied Defendants’ motion for emergency relief as to Volume One,” the motion reads. “Additionally, as the Court has noted, the Department of Justice has agreed that the Attorney General should not release Volume Two to the public while Defendants’ criminal cases remain pending. Accordingly, the sole issue still pending before this Court—and therefore the sole issue on which any intervention must focus—is the question of whether the Court should enjoin the Attorney General from allowing the Chairmen and Ranking Members of the Senate and House Judiciary Committees to review Volume Two in camera, under conditions designed to protect against any material risk of prejudice to the remaining criminal defendants.”
And on that last issue, the government claims, Trump simply has no good reason for his attempt to take part in further arguments.
“The case law provides for intervention in criminal cases only in limited circumstances,” the motion goes on. “Some cases limit intervention to situations in which a third party’s constitutional or other federal rights are implicated by the resolution of a particular motion raised in the case, while others look to whether a would-be intervenor has a legitimate interest that he cannot protect without becoming a party. Neither standard can be satisfied here—the Motion for Leave to Intervene identifies no constitutional or other federal right that could justify intervention in this case. Nor can the President-elect establish that he cannot protect his rights without becoming a party to this action.”
To hear the government tell it, the remaining controversy before Cannon just does not have anything to do with any of Trump’s rights – constitutional or federal. And, the government also says, if Trump really wants to keep the second volume of the report from seeing the light of day, he has chosen the wrong procedural vehicle.
“[I]ntervention is unnecessary here, as the Defendants in the case are seeking the identical relief on which the intervention is predicated,” the motion continues. “If the President-elect seeks to prevent the Chairmen and Ranking Members of the House and Senate Judiciary Committees from being permitted limited access to Volume Two of the Final Report, he could file his own civil action requesting that relief.”
