Will Democrats Be Able to Force Disclosure of Jack Smith’s Mar-a-Lago Report?

If they take control of a chamber of Congress next year, all bets are off.

This is the second of two columns on what is shaping up as a battle by President Trump and his Justice Department to discredit as illegitimate the Biden Justice Department’s two criminal prosecutions of Trump — the Mar-a-Lago documents case and the January 6 case, which involved the 2020 presidential election. The controversy crystallized this past week when Judge Aileen Cannon, a Trump appointee, forbade the Justice Department from disclosing Biden DOJ special counsel Jack Smith’s final report on the Mar-a-Lago investigation. Here’s the first column. 

I n the first column of this two-part series, we began exploring the rationale of Judge Aileen Cannon, a Trump appointee to the federal district court in South Florida, for purporting to order the Justice Department not to disclose the final report on the Mar-a-Lago documents probe by Biden DOJ special counsel Jack Smith — an investigation of President Trump’s alleged illegal retention of national-defense intelligence and alleged obstruction of that investigation.

Let’s continue with some relevant background.

As the Biden administration drew to a close following Trump’s 2024 election victory, Smith prepared two final reports, volume 1 related to the J6 case and volume 2 related to the Mar-a-Lago case. As was typical of actions by the politicized Biden DOJ (very much including the timing of Smith’s indictments and his push to get the cases to trial before Election Day), Attorney General Merrick Garland rushed to publicize Smith’s final reports prior to Trump’s taking office.

As I contended at the time, the need for such reports was dubious. This was not a situation in which the special counsel filed no charges, such that a final report was necessary for purposes of accountability. Smith filed extremely detailed indictments. Plus, the underlying evidence was publicly aired during pretrial proceedings that were so extensive that the cases never got to trial. This was especially true of the January 6 case, in which Smith publicized an elaborate proffer of the evidence he hoped to offer at trial. (The exercise of preparing a proffer was made necessary by the Supreme Court’s immunity ruling in that case; the push to do it publicly just prior to the election came from Smith and was green-lighted by Judge Tanya Chutkan, an Obama appointee in Washington, D.C.) There was no such proffer of Smith’s evidence in the Mar-a-Lago documents case, so there is a better accountability argument for publicizing the final report of that investigation. Still, it’s worth noting that the Biden DOJ’s motive to release the reports was political: In a coda to its failed lawfare strategy against Trump, the outgoing Democratic administration sought to sully him one more time just as he was taking office. (Such gambits are well known to Trump and his Justice Department, who habitually politicize prosecutorial powers to damage the president’s political enemies.)

Alas, as the Supreme Court emphasized in the immunity ruling, what courts prioritize is whether a government official has authority to take an action, not whether his motives for doing so are pure. Even if Garland was politically motivated, he had authority as AG, under the governing regulation, to publicize Smith’s final reports.

And he had history on his side. Over the years, it has become standard practice for such reports to be released to Congress and the public. That is because special counsels tend to be appointed in cases involving allegations of political corruption and abuse of power. Even if the misconduct is not prosecutable (and much abuse of power is not), there is a high public interest in holding accountable those who abuse offices of public trust. That’s why special counsel cases have not been governed by the usual Justice Department rules prohibiting publication of investigative information related to uncharged persons.

The Eleventh Circuit Appeal

Yet there was a complication with Smith’s final report on Mar-a-Lago: the appeal.

As we’ve noted, because of long-standing DOJ guidance against prosecuting a sitting president, the Biden DOJ knew it had to dismiss, as to Trump, its Eleventh Circuit appeal of Cannon’s disqualification of Smith. But there was no such guidance requiring dismissal against a president’s co-defendants. Garland and Smith therefore decided to persist in the appeal as to Nauta and De Oliveira. This was foolhardy if (as I believe) their real objective was to publicize Smith’s report in order to embarrass Trump. The co-defendants were comparative small fry; more to the point, Garland and Smith had to know that, once Trump took office, his DOJ would dismiss the appeal anyway. Nonetheless, they stubbornly kept the appeal alive through the end of Biden’s term.

Because of that decision, Nauta and De Oliveira had a valid basis to object to the final report’s publication: If the Eleventh Circuit reinstated the indictment that Cannon had dismissed, these co-defendants could theoretically still face trial; if the DOJ published Smith’s report before any such trial, the co-defendants’ right to a fair trial before an impartial jury would be undermined. Yes, this is all abstract nonsense because we know that the Trump DOJ was never going to go to trial against Nauta and De Oliveira. But courts would have to indulge the abstraction because, technically, the appeal was still alive.

Naturally, Nauta and De Oliveira posed objections in Judge’s Cannon court, even though she probably did not have jurisdiction since the case was now before the Eleventh Circuit. In the days before Trump’s inauguration, before Cannon could rule, Garland grudgingly conceded that the final Mar-a-Lago report should not be disclosed until there was a resolution in the pending case against Nauta and De Oliveira.

As certain as death and taxes, the new Trump DOJ then dismissed the Eleventh Circuit appeal. As a result, the Mar-a-Lago indictment was conclusively dismissed and the case was closed. Now, however, it was up to Bondi, not Garland, to decide whether to disclose Smith’s report. Trump does not want the report disclosed, so of course Bondi has declined to disclose it.

In This DOJ, Loyalty to the President Outweighs Defending Federal Investigations

As ever, Bondi is prioritizing the president’s personal desires over her department’s legitimacy. She rationalizes that Smith’s appointment was invalid and, therefore, that everything he did was corrupt and lawless.

Bondi is committed to promoting the president’s false narrative that he did nothing wrong and the cases against him collapsed because they were baseless. It’s laughable. Neither indictment was dismissed on the merits. As I’ve pointed out before, Smith overcharged the Mar-a-Lago case by heaping classified-information offenses — which federal law makes impossible to get to trial quickly — atop what should have been a straightforward obstruction case. The indictment was dismissed because of the form of Smith’s appointment, not the substance of the charges. Trump’s victory in the 2024 election made the case unsustainable. Again, that’s why the Eleventh Circuit appeal was dropped. But had the case been tried, there’s a good chance the president would have been convicted.

As for the January 6 case, because of immunity principles, Trump’s malfeasance in connection with the election and the Capitol riot may not have been criminally actionable. That question was never resolved: The Supreme Court did not dismiss the case; it sent the matter back to Judge Chutkan to resolve which counts (if any) were based on prosecutable private conduct rather than immunized executive acts. By then, though, it was too late to resolve that complicated question and get the case to trial prior to the election. And because of the afore-described DOJ guidance, Trump’s victory in the election mandated that the case be dismissed. If some part of the case had made it to trial, the president would very likely have been found guilty by a jury drawn from Trump-hostile Washington, D.C.; whether any convictions would have survived appeal is a tough question that would have taken a year or more to sort out.

That said, “misconduct” and “actionable crime” are not synonymous terms. Trump’s misconduct was egregious and not credibly deniable. It was the subject of a valid impeachment in Congress, and Trump managed to avoid conviction only thanks to the Constitution’s two-thirds super-majority standard — 57 senators voting guilty and 43 not guilty. Smith’s probe to determine whether Trump’s actions gave rise to prosecutable crimes was perfectly legitimate (even if he went about it in an overly zealous, politicized fashion). Indeed, in rationalizing his vote against convicting Trump at the impeachment trial, the Senate’s then–minority leader, Senator Mitch McConnell (R., Ky.), asserted that Trump could be “tried and punished in the ordinary tribunals of justice.” Smith’s investigation was derailed because it is very difficult to prosecute a former president, especially in the federal system; it was not because the investigation lacked validity.

Trump wants Bondi to not only withhold Smith’s final report on the Mar-a-Lago probe but make sure it never sees the light of day. The strategy for the latter has been to persuade the court to forbid the Justice Department from disclosing it — i.e., to convince Cannon, who was already predisposed to find Smith’s indictment of Trump unconstitutional, to hold that the entire investigation was tainted and, ergo, that the report should remain under wraps. The president and his co-defendants thus sought an order prohibiting its disclosure, and Bondi’s DOJ did not mount an opposition. While Cannon’s Monday ruling emphasized that lack of opposition, as if it signaled that the motion had merit, on what planet was the Trump Justice Department going to oppose Trump?

Future Challenge to Cannon’s Ruling

I don’t believe that Cannon’s ruling could withstand challenge if there were a litigant who had standing to complain.

Again, Smith could have conducted his investigation, never brought any charges regarding the Mar-a-Lago documents, and provided a final report that Garland could have made public. No court would have had any basis to forbid publication. Such was the case when Trump’s own Justice Department (in the first term) released Mueller’s final report; and so it was when the Biden DOJ released the final report on Russiagate abuses after special counsel John Durham completed it without charging the main culprits cited in the report. Smith’s indictment of Trump in Cannon’s court does not alter the fact that the disposition of the prosecutor’s final report to the AG is left to the discretion of the AG — it’s not Cannon’s call.

Despite Cannon’s claims to the contrary (and the Trump DOJ’s failure to object), a judge has no general supervisory authority over the DOJ’s operations. When there was a judicial case over which she was presiding, Cannon had full authority to suppress evidence in connection with proceedings in that case. In the four corners of the court prosecution, the evidence that Smith gathered was subject to federal discovery rules, as applied in Cannon’s discovery order. The case has now been closed for a year, however, so the discovery order that Cannon continues to tout is void of purpose. It is certainly not license for the judge to intervene, much less to block publication of Smith’s final report. The evidence gathered in the investigation, Smith’s obligation to write a final report for submission to the AG, and the AG’s decision about disclosing the report are internal DOJ business.

Furthermore, the fact that Cannon determined that Smith’s appointment lacked validity for purposes of the court case does not mean AG Garland could not disagree and regard Smith as the duly appointed special counsel for other purposes. Indeed, Smith’s appointment was never challenged in the January 6 case, and the Supreme Court did not come close to intimating that he was illegitimate. (Justice Thomas’s concurrence, raising questions about Smith’s status, was not joined by any of the other eight justices.) Even if Cannon was right about the appointments clause defect in Smith’s appointment (and for what it’s worth, I think she was), her ruling has no effect outside the Mar-a-Lago case, which is now long closed.

Congress’s statutes put the AG, not Judge Cannon, in charge of the DOJ. AG Garland had full authority to have Smith write a final report and to accept it as a special counsel report. There is also no doubt that the DOJ lawyers on Smith’s staff, who surely did the lion’s share of the work on the final report, were fully authorized to conduct federal prosecutions. (Since a special counsel should never be appointed unless a conflict of interest renders the DOJ unable to conduct the investigation, I’ve never understood why DOJ lawyers are permitted to work on such investigations. But it has become standard practice.)

Discovery rules control ongoing judicial cases. In the absence of a case, discovery rules provide Cannon with no authority to control the DOJ’s handling of an internal memorandum — no more than she could, at this point, order the Justice Department to, say, disclose evidence to Nauta and De Oliveira. It was the pendency of the case, and nothing else, that imbued Cannon with legitimate power to control the disclosure of prosecutorial files.

The White House and Main Justice are no doubt grateful for the judicial cover — grateful to be able to claim that a federal court has prohibited Bondi from disclosing the report, rather than that Bondi has decided (at Trump’s insistence) not to disclose it.

Since Trump, his co-defendants, and the Trump DOJ were the only parties before Judge Cannon, and since the Republicans control both houses of Congress, no cognizable objections were raised against Cannon’s ruling. And at this point, I don’t see the media or self-styled public-interest outlets being granted standing to challenge it. (In a footnote, Cannon recounts that she has already denied such status to two such applicants.) The applicable regulation puts the disclosure decision in Bondi’s discretion, and she has correctly maintained that the document is an intra-agency memo shielded from Freedom of Information Act disclosure under Section 552(b)(5).

Yet, if Democrats take control of a house of Congress next year, all bets are off. That became clear this week. As I detailed (here and here), in the course of a retributive firing of FBI personnel who worked on the Mar-a-Lago documents investigation, FBI Director Kash Patel alleged that Smith had acted corruptly in issuing subpoenas for the telephone toll records of Patel and White House chief of staff Susie Wiles. At the time, both Wiles and Patel were confidants of then–former President Trump, the target of the investigation. In fact, Patel — who dubiously claimed to have knowledge that Trump had declassified the documents — was compelled to give grand jury testimony, based on an immunity order, after he initially asserted his Fifth Amendment privilege against self-incrimination to try to avoid testifying.

Undoubtedly, a House Judiciary Committee in its first days under Democratic control would subpoena the DOJ to produce Smith’s Mar-a-Lago report. The Trump DOJ would defy the subpoena, relying on Judge Cannon’s ruling; committee Democrats would then counter that her ruling is erroneous. They would argue that Cannon never heard any meaningful opposition to Trump’s request that she suppress the report; and that even if there were arguably any basis for her ruling, the behavior of DOJ and FBI officials has changed the circumstances. That is, Democrats will contend that the DOJ and FBI should not be able to have it both ways — to make unsupported public representations about the investigation and the way Smith conducted it while concealing the final report in which Smith explained what his investigation uncovered and why he compelled such evidence as Patel’s testimony and the disputed phone records.

I believe that the committee would win such an argument, but it could take a very long time to resolve.

Again, a nullification of Judge Cannon’s ruling would not, by itself, require AG Bondi to surrender the report to Congress. It would mean that the pitched battle between the political branches would be over the attorney general’s authority, not the court’s.