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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).
Lawyers for Donald Trump and his onetime codefendants in the Mar-a-Lago confidential documents case have asked the federal judge in Florida appointed by the former and future president to block the Justice Department from releasing an upcoming report from special counsel Jack Smith.
The ask of U.S. District Judge Aileen Cannon — who dismissed the case against Trump in July after finding that Attorney General Merrick Garland unlawfully appointed Smith as special counsel — arrived in the form of a letter from Trump’s lawyers included in a strongly-worded emergency motion filed Monday by attorneys for Waltine Nauta and Carlos De Oliveira, the two remaining defendants in the Mar-a-Lago matter.
“Consistent with the bad-faith crusade that Smith executed on behalf of the Biden-Harris Administration from the moment he was appointed, we were only permitted to review the Draft Report in person in the District of Columbia, including prohibitions on the use of any outside electronic devices in the room where the Draft Report was made available,” the letter says, adding that Smith “demanded” that Trump’s legal team delete prior discovery productions. “Nevertheless, it is clear, as has been the case with so many of the other actions of Smith and his staff, that the Draft Report merely continues Smith’s politically-motivated attack, and that his continued preparation of the Report and efforts to release it would be both imprudent and unlawful.”
The letter describes Smith as a man on a singular mission — to do as much damage as possible to the incoming president and those associated with him.
“[T]he release of any confidential report prepared by this out-of-control private citizen unconstitutionally posing as a prosecutor would be nothing more than a lawless political stunt, designed to politically harm President Trump and justify the huge sums of taxpayer money Smith unconstitutionally spent on his failed and dismissed cases,” the letter says. “Under such circumstances, releasing Smith’s report is obviously not in the public interest — particularly in light of President Trump’s commanding victory in the election and the sensitive nature of the ongoing transition process.”
Trump’s lawyers say that the incoming president isn’t the only target of Smith’s report, and signal that Smith also points the finger at Trump confidante Elon Musk and his massive social media platform.
“Equally problematic and inappropriate are the draft’s baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith’s pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount,” the letter says.
The emergency motion filed on behalf of Nauta and de Oliviera says the defendants will be “irreparably damaged” if the report is released.
“Despite this Court’s concluding that Smith is unconstitutionally appointed and funded, and despite ongoing proceedings against Defendants Waltine Nauta and Carlos De Oliveira, Special Counsel Smith, in defiance of this Court’s rulings, is determined to have the final word by pushing forward with issuing and transmitting a final report under 28 C.F.R. § 608(c) (the “Final Report”) which Attorney General Garland is certain to make immediately public,” the motion begins. “These Defendants will irreparably suffer harm as civilian casualties of the Government’s impermissible and contumacious utilization of political lawfare to include release of the unauthorized Report. 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.”
Smith, for his part, described the report in a response filed Tuesday morning as more of an explanation and less of a tell-all, as the defense lawyers suggest.
“The Special Counsel’s Office is working to finalize a two-volume confidential report to the Attorney General explaining the Special Counsel’s prosecution decisions,” the filing says (citations omitted). “The Attorney General will decide whether any portion of the report should be released to the public. One volume of the report pertains to this case.”
Lawyers for Nauta and de Oliveira, however, made clear that they believe any report from Smith is “impermissible” and would result in extreme prejudice against their clients.
“The Final Report promises to be a one-sided, slanted report, relying nearly exclusively on evidence presented to a grand jury and subject to all requisite protections — and which is known to Smith only as a result of his unconstitutional appointment — in order to serve a singular purpose: convincing the public that everyone Smith charged is guilty of the crimes charged,” the motion alleges. However, as both the case against Nauta and de Oliviera is ongoing and as Smith has appealed the dismissal of Trump from the case, the lawyers say, “[t]here remains the threat of future criminal proceedings as to Nauta and De Oliveira, and those proceedings will be irreversibly and irredeemably prejudiced by dissemination of the Final Report. As the Government knows, the continued operation of the protective order in this case will make the one-sided impermissible Final Report even more unfairly prejudicial; Defendants are strictly precluded [from] refuting the Report.”
“The Final Report is meant to serve as a Government verdict against the Defendants contrary to all criminal justice norms and constitutional guideposts,” the motion adds.
According to the defendants, Cannon “certainly does not need to tolerate such prejudice when it stems directly from the unconstitutionally funded acts of an unconstitutionally appointed individual whose purported authority stems directly from unlawful regulations.”
The motion also describes Smith as a “rogue actor” acting outside the law.
“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.”
Additionally, the motion — filed four years to the day after Trump supporters raided the Capitol in an attempt to block Congress from certifying Joe Biden’s 2020 electoral victory — argues that releasing the report would interfere with the peaceful transition of presidential power.
“The Presidential Transition Act’s purpose is ‘to promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President,”” the motion says (citations omitted). “‘Any disruption’ of the transition ‘could produce results detrimental to the safety and well-being of the United States and its people.’ And thus ‘all officers of the Government’ are ‘to avoid or minimize disruptions that might be occasioned by the transfer of the executive power, and otherwise to promote orderly transitions in the office of President.’”
The motion continues:
Release of the Final Report will disrupt the President-Elect’s ability to govern once he takes office. Like an indictment, the Final Report threatens “public stigma and opprobrium” and so could “compromise the President’s ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs.” That is a burden on the President’s constitutional responsibilities, and “a proper balancing of constitutional interests in the criminal context dictates” instructs that the Final Report should not now issue. Such a burden must not be imposed, especially as a result of a prosecution deemed unlawful by an Article III court. The Final Report threatens the proper balancing of constitutional interests, and is a fortiori inconsistent with the Presidential Transition Act.
The motion asks Cannon to “enter an Order to preclude Smith from transmitting the Final Report or taking any other action related to it — including sharing it with other persons; editing it; or accessing materials on which it relies — until this Court resolves this emergency motion.”
Nauta and de Oliviera requested “an immediate hearing” on the motion.
In Tuesday’s responsive filing, Smith laid out a timeline for his future plans regarding the report’s release — and implied that Garland may choose not to release the report after all.
“The Attorney General has not yet determined how to handle the report volume pertaining to this case, about which the parties were conferring at the time the defendants filed the Motion, but the Department can commit that the Attorney General will not release that volume to the public, if he does at all, before Friday, January 10, 2025, at 10:00 a.m.,” the filing says. “The Special Counsel will not transmit that volume to the Attorney General before 1:00 p.m. on January 7, 2025. The Government will file a response to the defendants’ Motion no later than January 7, 2025, at 7:00 p.m.”
