Jack Smith has Finished his Final Report

Late Monday night, lawyers for both Donald Trump and Nauta & DeOliveira submitted documents to Merrick Garland and Judge Aileen Cannon asking them to block the release of the Special Counsel report.

Jack Smith has finished a draft of his final report which has been reviewed by lawyers for Donald Trump in the January 6th election subversion case, and lawyers for his co-defendants Walt Nauta and Carlos DeOliveira in the classified documents case.

First, let’s look at Nauta and DeOliveira’s emergency motion to preclude the government from releasing Jack Smith’s report on the grounds that it contravenes Judge Cannon’s dismissal of the case, and that it prejudices their pretrial rights. They have also asked for a hearing on their emergency motion (a Judge Cannon specialty.)

They claim that Garland is going to imminently release the report:

Despite this Court’s concluding that Smith is unconstitutionally appointed and funded, and despite ongoing proceedings against Defendants Waltine Nauta and Carlos De Olivera, 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.

They claim that because Cannon dismissed the case, Smith no longer has access to the information in the report and must therefore be blocked from releasing it because they will suffer “irreparable harm.”

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.

Then they make their demands:

The Defendants request an immediate hearing on this motion, at which they will establish the impropriety of unchecked release; the scope of the resulting prejudice; and the specific materials contained in the Report for which release is impermissible. Even if any version of a Final Report were to be transmitted and released—and the Defendants maintain no such release would be warranted—the Defendants are at the very least entitled to a hearing to demonstrate why certain materials should remain protected. The Defendants request that this Court 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.

Their next argument is that since the case against them still stands - albeit an appeal - the release of the report would prejudice any future criminal proceeding that could result from a reversal of Judge Cannon’s ruling (which we all know won’t happen, but they argue this anyhow.)

There 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.

Finally, they want a ruling by January 10th because they assume that the release is imminent:

Immediate relief is necessary because there is every reason to believe that the Government will issue the Final Report within the next few days. Thus, Defendants respectfully request that this Court treat this motion as an Emergency Motion under Local Rule 7.1(d)(1) and request a ruling by January 10, 2025.

In early December:

…counsel for Defendants and President Trump reached out to a member of the Special Counsel’s Office, J.P. Cooney. Counsel were told the Special Counsel’s Office would afford the meager courtesy of allowing hard-copy review of the Report at the Special Counsel’s office with provision of comments due before 2:00 p.m. on January 6. Counsel were not permitted to bring electronic devices into the reviewing room, and the Office declined to make the Report available to out-of-town Florida counsel anywhere other than in the Special Counsel’s D.C. office (either shortly before or during a significant snowstorm). D.C. counsel for De Oliveira was able to review the Report on Saturday, January 4, and D.C. counsel for Nauta did so yesterday, Sunday, January 5.

It appears that the draft report went to the defendants before it was turned in to Merrick Garland:

The Final Report will go to Attorney General Garland, who then can authorize public release of the Final Report. There is every reason to believe he will do so as fast as possible. First, he “has opted to release the reports from two other special counsels whose investigations concluded during his tenure.” The review deadline Smith’s team gave Defendants’ attorneys—providing for review only between January 3 and January 6—reflects that public release is imminent.

This seems to me like a courtesy heads up as opposed to an invitation to object. That appears to be confirmed here, as Jack Smith has proposed some redactions, but did not invite the defendants to recommend any of their own:

Smith has proposed recommending redactions of direct quotes from the grand jury but has notably not proposed redacting information provided to the grand jury in direct response to a grand jury subpoena—for example, communications subpoenaed and taken out of context. This further illustrates the need for a hearing before this Court to determine what material contained in the Final Report cannot be released, at least during the pendency of the criminal case. A hearing is particularly warranted because, though Smith has recommended certain redactions, his team has not invited any further redactions by the defense and has, apparently, ignored the record history of this Court’s repeated efforts to carefully identify matters that should remain sealed to protect constitutional rights, privileges, and the interest of the public in a fair adjudicative process.

I think this kind of relief is something Judge Cannon will agree with (because she’s wrong so often), though the argument that the two of them could still be subject to prosecution if the 11th circuit overturns Cannon’s dismissal isn’t totally out of bounds. Though we all know that Trump will kill this case, it seems counterintuitive to release information about folks who could face prosecution later. However, the case HAS BEEN DISMISSED, so we’ll see what she does. Regardless, I don’t think she has the power to stop this, but I have exactly ZERO faith in the Supreme Court. However, Nauta and DeOliveira don’t enjoy any kind of immunity, so they can’t exactly ask for interlocutory appeal. That brings us to Trump’s letter to Merrick Garland about his insurrection case.

Trump’s lawyers demand Merrick Garland block the release of the Special Counsel report for four reasons:

1. Smith lacks authority to release a report because Judge Cannon said he’s not a real Special Counsel

2. The release of the report would violate the constitutional rights of un-indicted co-conspirators and needs to be so heavily redacted that it’s release would be meaningless

3. Releasing the report would interfere with the Presidential Transition and therefore violates the Presidential Transition Act, AND releasing the report violates presidential immunity which prohibits prosecution (this is the bit I was worried about: would Merrick Garland consider releasing the report part of a prosecution and therefore in violation of immunity.)

4. The fourth reason is just idiotic political puffery: Finally, the 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. 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.

Here’s where it gets interesting. Trump reveals that Jack Smith originally offered him a look-see at the draft report during Christmas week!

On December 11, 2024, we contacted a supervisor with the Special Counsel’s Office to express concerns about reports we were hearing from the press. We asked whether the Office was preparing a report and, if so, whether we would be allowed to review it prior to completion. Initially, Smith’s position was that: (1) we would only be permitted to access a draft of the report in Washington, D.C. betweenDecember 23 and December 29, 2024, the week of Christmas; (2) we would only be permitted to take handwritten notes during our review; and (3) any comments or objections to the draft would have to be submitted in writing by the close of business on December 29, 2024.

So Jack Smith DID afford everyone more time to review the report, and the “snowstorm” bullshit excuse from Nauta and DeOliveira’s counsel was bullshit. When they all objected, Smith said that if he let them review it in early January, it wouldn’t give them time to complete their work.

I take a few things away from that statement. First, Jack Smith intends to submit his report to Merrick Garland with enough time for him to review it, and that Garland intends to release it before January 20th.

And it looks like there are two volumes. I presume one volume is for one case and volume two is for the other.

Subsequently Smith … permitted defense counsel to review the two-volume Draft Report in a conference room at Smith’s office between January 3 and January 6, 2025, without allowing counsel to access the Internet or use their own electronic devices while in the room with supposedly sensitive documents that the press has known about for weeks by virtue of Smith’s leaks.

This next bit is interesting. I was concerned about whether Smith would be willing to declare Trump committed crimes without Trump being able to face his accuser in court. That’s the entire reason Mueller refused to declare that Trump had obstructed justice in his final report. As I discussed with Andy McCabe in the latest episode of Jack, we decided that didn’t make sense because Jack Smith has already accused Trump of committing crimes because he indicted him. Here’s what Trump says about it:

Despite Smith’s decision to dismiss his cases against President Trump, and his complete failure to obtain a “jury’s determination that guilt has been established beyond a reasonable doubt,” his Draft Report repeatedly, and falsely, claims that President Trump, Carlos De Oliveria, Waltine Nauta, and others have committed crimes and otherwise engaged in purported “criminal conduct. ”For example, Volume I of the Draft Report falsely asserts, without any jury determination, that President Trump and others “engaged in an unprecedented criminal effort,” was “the head of the criminal conspiracies,” and harbored a “criminal design.” These false accusations of criminality, which Smith again utterly failed to prove in Court, repeat throughout Volume I. See, e.g.,id. at 3, 52, 60, 64, 67, 88, 108. Likewise, Volume II asserts, without any supporting verdict, “that Mr.Trump violated multiple federal criminal laws,” and that he and others engaged in “criminal conduct.” Vol. II at 60, 88; see also, e.g., id. at 89, 121. Moreover, the Draft Report makes these allegations despite the ongoing prosecutions of DeOliveira and Nauta, which would cause gravely unconstitutional prejudice if released.

So that answers that. Jack Smith, unlike Robert Mueller, isn’t afraid to accuse Trump and his co-conspirators of crimes. Also, looking at those page numbers, this report is at least 229 pages long.

In fact, Trump cites Mueller’s refusal to accuse him of crimes, but that was because he was a sitting president. Here, Jack Smith indicted Trump and accused the whole gang of crimes when they were private citizens.

Likewise, Special Counsel Mueller expressly declined to “apply an approach” to his report “that could potentially result in a judgment that the President committed crimes,” where, as here, “no charges c[ould] be brought.” Mueller Report, Vol. II at 2. In Special Counsel Mueller’s view, “[f]airness concerns counseled against” any kind of public accusation because:

[t]he ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The conclude with this:

If you elect to proceed with Smith’s plan, we again respectfully request (1) notice of such decision prior to any publication of the Draft Report, allowing us to take appropriate legal action, and (2) that this letter and Smith’s meritless responses to the legal arguments set forth herein be incorporated into the Report.

It appears as though Trump intends to file an emergency request with the court - perhaps on an interlocutory basis - to try to stop Garland from releasing the report.

We will see how Garland decides to proceed, given the window of review Jack Smith gave to the defendants is now closed. I imagine if Smith hasn’t submitted his report to Garland tonight, he will tomorrow.

Tune in to the current and next episodes of the Jack podcast for more. As always, the podcast is free. If the report is released, we will record an audio version of the report.

Thank you for reading. As it’s late, please forgive any typos.

You can read the letter from Trump to Garland here, and the filing from Nauta and DeOliveira on Judge Cannon’s docket here.

~AG