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 battle doesn’t end there. The ruling by the Atlanta-based 11th Circuit Court of Appeals Thursday evening left in place an order by 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, which would trigger a new round of emergency proceedings. At the same time, Trump’s allies could challenge the appeals court ruling, perhaps by seeking relief from the Supreme Court. The Supreme Court on Thursday rejected Trump’s attempt to avoid a conviction for his criminal conviction in his New York hush money case.
In short, the fate of Smith’s report – and whether any part 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 the appeals court to resolve the case on Friday, although it appears it will take at least a few more days, with just 11 days to go before Trump is inaugurated and takes control of the department.
Smith effectively dropped both of his criminal cases against Trump — one for his attempt to undermine the 2020 election, one for hoarding classified documents at his Mar-a-Lago estate after he left office in 2021 — after Trump’s had won the November elections, citing the judge. The department’s policy against the prosecution of sitting presidents.
But the Justice Department continues to try to revive charges against Trump’s two alleged co-conspirators in the classified documents case, Walt Nauta and Carlos De Oliveira, and is challenging a July ruling by Cannon that found that Smith’s appointment was legally defective.
The battle 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 not to make the report public until at least three days after the 11th Circuit had a chance to consider the case. The Justice Department’s response urged the appeals court to overturn Cannon’s order, but the justices declined to do so.
The 11th Circuit’s action Thursday offered few details. The names of the judges who heard the case have not been released. The court’s two-page injunction stated that Nauta and De Oliveira’s request for an injunction had been “denied.” The order did state that if the Justice Department wanted relief from Cannon’s emergency order, prosecutors could appeal that order. The appeals court offered no insight into the legal reasoning behind its decision.
Most importantly, the order leaves in place Cannon’s block of Smith’s report on Trump’s efforts to undermine the 2020 election, which culminated in the Jan. 6 attack on the Capitol. Although Cannon had nothing to do with that case, Smith produced a two-part report — one for each major part of his investigation — and Cannon’s order made no distinction between the two.
The Justice Department indicated Wednesday that Garland would not release the classified documents component of Smith’s report — as the case against Nauta and De Oliveira is still ongoing — but planned to release the election subversion report soon if the courts allow it.
