Attorney General Merrick Garland plans to release only the volume of special counsel Jack Smith’s report dealing with Donald Trump’s plans to subvert the transfer of power after his loss in the 2020 election, holding back on sharing the Mar-a-Lago report while the president-elect's two co-defendants still face trial.
Federal prosecutors made Garland’s plans clear in a Wednesday morning filing urging an appeals court to reject a bid from Trump valet Walt Nauta and property manager Carlos De Oliveira to bar the attorney general from releasing the report in its entirety.
Garland made the determination at Smith’s recommendation “to avoid any risk of prejudice.”
“The Attorney General determined that he will not make a public release of Volume Two while defendants’ cases remain pending. That should be the end of the matter,” prosecutors wrote.
The filing says the top members of the House and Senate Judiciary committees will be able to review the Mar-a-Lago report at the Department of Justice (DOJ).
Garland’s decision, however, all but assures the public will never see Smith’s report reviewing Trump’s mishandling of classified records at his Palm Beach, Fla., resort.
Under Trump’s DOJ, prosecutors are expected to drop charges against Nauta and De Oliveira, and Trump has moved to stock the top ranks of DOJ with his personal criminal defense team — the same cadre of attorneys who this week have fought to block release of Smith’s work entirely.
The filing comes amid a broader legal battle by Trump and his co-defendants to block Smith from releasing both sections of his two-volume report.
The trio first went to U.S. District Judge Aileen Cannon, who agreed Tuesday to block release of the whole report without waiting for a promised filing by Smith’s team.
It was an unusual move for several reasons.
It’s not clear Cannon still has jurisdiction over the case. Prosecutors have appealed an earlier ruling from her tossing the case after she determined Smith was unlawfully appointed — a decision reversing 50 years of precedent regarding special counsel laws. The matter now rests before the 11th Circuit Court of Appeals.
Cannon also enjoined Smith from releasing the portion of the report dealing with Jan. 6, 2021, a matter that was overseen by a Washington, D.C.-based federal judge.
Trump, meanwhile, sent a letter to Garland urging him to fire Smith and leave the decision of whether to release the report to his own attorney general in the incoming administration.
Nauta, De Oliveira and the president-elect made nearly identical filings before the 11th Circuit, which is now weighing the matter.
Prosecutors on Wednesday noted the men asked courts to block Smith from transferring the report to Garland, something Cannon’s order did not expressly prohibit. Their underlying request, they wrote, was “overtaken by events.”
They also said the men were “incorrect” in assuming Garland was assured to release the Mar-a-Lago section of the report.
But it said Trump’s co-defendants had no standing when it comes to the release of the election interference volume of the report.
“Defendants Nauta and De Oliveira have no cognizable interest in that volume of the Final Report, however, nor any plausible theory of Article III standing that would justify their asking this Court to grant relief with respect to it. Nor would there be any legal basis for any other interested party to seek to block release of Volume One,” prosecutors wrote of the Jan. 6 report.
“All that is left is for the Attorney General to determine how to handle that report, and his authority in this respect is clear.”
Nauta and De Oliveira had also asked the 11th Circuit to remand the case to Cannon, a nod to the unusual nature of the legal battle.
“A remand would entail further delay, which is inappropriate in light of the exigencies recognized in defendants’ own request for emergency relief,” prosecutors said.
Updated at 10:55 a.m. EST
