This is an outrageous maneuver by a federal prosecutor.
This is an outrageous maneuver by a federal prosecutor.
I f you’ve been laboring under the assumption that Biden-Harris Justice Department special counsel Jack Smith had folded up his tent and headed home, disabuse yourself.
Thanks to what they say were media leaks from Smith’s office, President-elect Trump’s lawyers say they learned that Smith is preparing a two-volume report, to be released prior to Inauguration Day, that would lay out in one-sided detail — with no opportunity for defense cross-examination or other due-process protections — what Smith contends is the evidence by which he would have proved the offenses charged against Trump and his two codefendants in the Mar-a-Lago documents case.
This is an outrageous maneuver by a federal prosecutor. It is even worse by the attorney general — and we have to assume AG Merrick Garland is encouraging Smith to “complete his work” in this fashion given Smith’s representation that he is closely supervised by Garland (a representation that was made to the courts when the constitutional validity of Smith’s special-counsel appointment was challenged — and that ran counter to Garland’s prior public claims that Smith was an independent actor).
As further detailed in this post, immediately after we published this column, Judge Aileen Cannon ordered the Justice Department and Smith to refrain from publicly issuing any report until the Eleventh Circuit federal appeals court acts on a pending application to bar publication of the report. (That application is further described below.)
The only conceivable reason for going through this “final report” exercise, and for the haste in getting it completed before Trump takes office (and takes control of the Justice Department) in less than two weeks, is to make the report public. This is not just unnecessary in light of the extensive public record of the Mar-a-Lago case; it flouts Justice Department rules against publicizing evidence against a person who is not facing public charges (the case against Trump has been dismissed) while profoundly prejudicing the fair trial rights of the two codefendants (Waltine Nauta and Carlos De Oliveira) against whom the Justice Department has not conclusively dismissed the case.
The gambit is of a piece with the unabashedly political stunt Smith and Garland pulled in connection with the January 6 prosecution of Trump in Washington, D.C. In that case, the Biden-Harris Justice Department used the Supreme Court’s July 1 immunity decision as a pretext to publicize, prior to the election, the evidence Smith maintained that he would have presented against Trump in that case. In its ruling, the Court had instructed the presiding judge, Tanya Chutkan, to sort through Smith’s charges and evidence in order to determine which acts proffered by Smith were official presidential acts, and thus presumptively immune from prosecution, and which were private and amenable of prosecution. Smith and the Justice Department converted this directive into a political opportunity to boost the Democrats’ presidential campaign by voluminously airing Smith’s prosecution plan.
Because it is obliged to uphold the constitutional rights of an accused, the Justice Department is not supposed to make allegations publicly unless the accused has the due process protections afforded when inculpatory evidence is presented in court — presumption of innocence, cross-examination, presentation of defense witnesses and arguments, and so on. In addition, the judge is supposed to protect the jury pool in her district from prejudicial pretrial publicity about the case. In short, there was no good-faith law-enforcement or judicial reason why that needed to be done publicly. Yet the Biden-Harris DOJ prosecutor publicized his evidence, with the indulgence of the Obama-appointed judge. It was a brazen attempt to sway the outcome of the presidential election — an improper purpose . . . but then again, improperly influencing the outcome of the 2024 election was the raison d’être for Smith’s indictment of Trump on, ironically, charges of improperly influencing the 2020 election.
In connection with the Mar-a-Lago prosecution, Smith does not even have the fig leaf of a Supreme Court directive to rationalize publication of a one-sided version of his case. He is relying solely on the special counsel regulations, which empower a special counsel to file a final report with attorney general in order to explain his charging decisions.
Under the circumstances, that is a risible pretext, for several reasons.
First, this is not an uncharged case. To the contrary, for two-plus years, Smith extensively indicted and litigated the Mar-a-Lago case in lengthy, narrative indictments charging dozens of crimes. In so doing, he filed extensive memoranda in court explaining and attempting to defend the prosecution. Nothing on the planet Earth has been more comprehensively explained than Jack Smith’s charging decisions. The suggestion that he needs to file a report to complete his work would be laugh out loud funny if it were not being made out of insidious partisanship.
Second, the regulation on which Smith is relying, §600.8(c), directs that the special counsel is to file a “confidential” report with the attorney general. That is precisely because of Justice Department standards against publicizing evidence against people who are not charged (Trump is no longer charged in the case) and/or do not have the opportunity to defend themselves from public allegations under the due process rules that apply in court. Nevertheless, Smith is rushing to complete the report on the expectation that Garland will direct it to be made public just days (perhaps hours) before Trump takes the oath of office on January 20. (Despite the confidentiality provision in the rule, it has become routine for attorneys general to publicize these reports. Such disclosure decisions have been political responses to congressional and media clamor; they run counter to legal considerations.)
Third, with respect specifically to the Mar-a-Lago prosecution, the indictment was dismissed by Judge Aileen Cannon, in a well-reasoned 93-page opinion, on the rationale that Garland’s appointment of Smith as special counsel violated the Constitution — specifically, it ran afoul of the appointments clause, which requires that, to qualify as an officer of the United States (as a special counsel must), a person must either (a) be nominated by the president and confirmed by the Senate, or (b) be appointed in accordance with a statute enacted by Congress; Smith fulfills neither of these conditions. In connection with President-elect Trump, moreover, the Justice Department has dropped its Eleventh Circuit appeal of Judge Cannon’s ruling. Ergo, as to Trump, Smith’s disqualification is the law of the case — irrespective of the fact that Garland disagrees with Cannon’s ruling and has kept the appeal alive with respect to the other two defendants.
Fourth, Smith and Garland can’t have it both ways. If they are pursuing the appeal with respect to Trump’s co-defendants (Nauta and De Oliveira), then the case is still pending and Smith has no business filing a final report. If they drop the appeal (in anticipation of the fact that Trump would surely direct that the appeal be dropped when he takes office), then Cannon’s disqualification of Smith is final, and he therefore is not validly acting as a special counsel and should not be filing a report.
Fifth, when Smith moved to dismiss the January 6 case, he explained that, pursuant to Justice Department guidance, a previously pending prosecution could not proceed against a president once that president took office because the stigma and distraction of criminal allegations would undermine the president’s ability to function as chief executive — such functioning being essential to the Constitution’s governing framework. Yet the report that Smith proposes to complete, and that the demonstrably partisan Garland would publicly release, would have precisely the effect of stigmatizing and distracting the president.
Finally, assuming the accuracy of Trump’s attorneys’ version of events — and these are representations they have made in court — Smith has gone about this business in an unseemly fashion. The defense lawyers found out about the imminent report from the media, not the government. When they objected and asked to review what Smith was doing, they were told the draft report would only be available to them if they traveled to Washington to review it between December 23 and December 29 — i.e., over the Christmas holiday (none of the attorneys involved lives in Washington). They were further instructed that they’d not be able to use any electronic devices to assist their perusal and notetaking, could only make handwritten notes, and would be expected to submit any objections or comments by close of business on December 29. When Trump’s lawyers objected to these conditions, Smith first claimed that the review could not take place after New Year’s Day because that would contravene his deadline for getting the report completed — a deadline Smith self-imposed for patent political reasons, not an actual legal deadline. He subsequently relented, allowing counsel to review the report between January 3 and January 6 — but with the aforementioned stringent restrictions on notetaking, plainly designed to make it difficult for Trump’s lawyers to generate a comprehensive response.
Yesterday, Trump’s lawyers — including Todd Blanche, Trump’s nominee to be deputy attorney general — submitted a twelve-page letter to AG Garland objecting to the report and to Smith’s participation in it in light of Cannon’s disqualification order.
Meantime, Nauta and De Oliveira have filed a motion in federal district court (the Southern District of Florida) asking Cannon to intervene to preclude the government from issuing a report by Smith. Though they are correct in claiming that the public issuance of a report would prejudice their fair-trial rights, I don’t know what Judge Cannon can do about it.
As noted about, the government has appealed Cannon’s ruling to the Eleventh Circuit (only insofar as it relates to Nauta and De Oliveira — the Trump appeal, again, has been dropped). It is doubtful, then, that Cannon has jurisdiction to act on the case. Furthermore, even assuming for argument’s sake that she has jurisdiction, I don’t see how she has any authority either to order Smith not to file a confidential report with Garland, or to direct Garland not to publicize the report. In theory (i.e., if as a practical matter the Trump Justice Department were not certain to drop the pending appeal), were the Eleventh Circuit to reverse Cannon’s ruling and remand the case to her court, she would then have power to entertain motions to dismiss the indictment on the ground that the government intentionally undermined the defendants’ fair trial rights. But unless and until that happened (it won’t), I don’t see how she can act on the case, bar Smith from submitting the report to Garland, or bar Garland from making the report public.
Obviously cognizant of this problem, Nauta and De Oliveira filed an emergency motion in the Eleventh Circuit this morning, seeking the same relief they sought from Judge Cannon. It’s not clear what the circuit’s authority is over internal Justice Department reporting (I do not believe it has such authority); but if it were inclined to do so, the circuit could certainly ask Garland some pointed questions about what’s going on here . . . and why.
The two-volume special counsel report Smith is poised to submit to Garland for publication is wholly unnecessary and runs afoul of core Justice Department obligations. For Garland to encourage and ultimately publicize this exercise would be shameful.
To reaffirm what I’ve contended before, to preserve the Justice Department as a bulwark of the rule of law in the United States, President Trump must put an end to lawfare — the abuse of our law-enforcement apparatus as a partisan political weapon. Democrats are ill-suited to add their voices to that contention, though, until they stop their zealous practice of lawfare. It does not look like that’s on the horizon. That only invites more politicizing — and delegitimizing — of our judicial system.