Appeals Court Muddles Timing Of Release For Jack Smith’s Final Report

A federal appeals court has rejected an effort by Donald Trump and his allies to block the Justice Department from releasing special counsel Jack Smith’s final report on his two defunct criminal cases against the president-elect.

But the fight doesn’t end there. The Atlanta-based 11th Circuit Court of Appeals’ ruling Thursday night left in place an order from U.S. District Judge Aileen Cannon — the judge in one of those cases — that in its current form bars Attorney General Merrick Garland from releasing the report through at least Sunday.

The Justice Department could challenge Cannon’s order, triggering another round of emergency court proceedings. At the same time, Trump’s allies could challenge the appeals court ruling, perhaps by seeking relief from the Supreme Court. The high court on Thursday turned down Trump’s attempt to stave off sentencing for his criminal conviction in his New York hush money case.

In short, the fate of Smith’s report — and whether some of it will be released publicly in the coming days — remains a muddle. A Justice Department spokesperson declined to comment on the latest development.

DOJ had asked that the appeals court resolve the matter by Friday, though it appears it will take at least another few days, with just 11 days left until Trump is inaugurated and takes control of the department.

Smith effectively dropped both of his criminal cases against Trump — one for his effort to subvert the 2020 election, one for hoarding classified documents at his Mar-a-Lago estate after leaving office in 2021 — after Trump won the November election, citing the Justice Department’s policy against prosecuting sitting presidents.

But the Justice Department is continuing to seek to revive charges against Trump’s two alleged co-conspirators in the classified documents case, Walt Nauta and Carlos De Oliveira, challenging a ruling by Cannon in July that found Smith’s appointment was legally flawed.

The fight over Smith’s report escalated on Tuesday, when Nauta and De Oliveira filed a motion urging Cannon to prevent Smith from releasing his report altogether. They also asked the 11th Circuit for similar relief.

Cannon quickly ordered the Justice Department to refrain from making the report public until at least three days after the 11th Circuit had a chance to weigh in on the matter. The Justice Department’s response urged the appeals court to overturn Cannon’s order, but the judges declined to do so.

The 11th Circuit’s action Thursday offered little in the way of detail. The names of the judges who considered the matter were not disclosed. The two-page appeals court order said Nauta and De Oliveira’s request for an injunction was “denied.” The order did say that if the Justice Department wanted relief from Cannon’s emergency order, prosecutors could file an appeal of that order. The appeals court offered no insight into the legal reasoning behind its decision.

Most significantly, the order leaves in place Cannon’s block of Smith’s report on Trump’s effort to subvert the 2020 election, which culminated in the Jan. 6 attack on the Capitol. Though Cannon had nothing to do with that case, Smith produced a two volume report — one for each major prong of his investigation — and Cannon’s order did not distinguish between the two.

The Justice Department indicated Wednesday that Garland would not release the classified documents component of Smith’s report — since the case against Nauta and De Oliveira remains ongoing — but intended to release the election subversion report imminently if the courts permit it.