Justice Dept. to Hold Off Releasing Report on Trump Documents Case

Justice Dept. to Hold Off Releasing Report on Trump Documents Case

But in a court filing, the department indicated that it would release a separate report about Donald J. Trump’s efforts to overturn the 2020 election as soon as possible.

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By Alan Feuer and Charlie Savage

Alan Feuer and Charlie Savage write about legal proceedings, including the former criminal cases against President-elect Donald J. Trump.

Federal prosecutors said on Wednesday that they planned to hold off on releasing a portion of a report by the special counsel, Jack Smith, detailing his investigation into President-elect Donald J. Trump’s refusal to give back a trove of classified documents he took from the White House after leaving office.

But if the Justice Department can overcome a court order blocking the report from coming out, prosecutors said they plan to release a separate volume concerning Mr. Smith’s other investigation into Mr. Trump’s efforts to overturn his loss in the 2020 election.

The department’s decisions — laid out in a filing to a federal appeals court in Atlanta — brought a measure of clarity to what amounts to the final chapter of Mr. Smith’s work, which began more than two years ago and led to the first federal indictments of a former president in American history.

With all of the charges against Mr. Trump now dismissed, the two-volume report — only part of which may now see the light of day — was meant to be Mr. Smith’s valedictory word on his efforts to hold Mr. Trump accountable for a remarkable array of criminal allegations.

The Justice Department’s steps on Wednesday almost certainly meant that the incoming Trump administration will get to decide whether to release the documents portion of Mr. Smith’s report. And that seemed unlikely: Mr. Trump’s own lawyers have been fighting its disclosure.

The battle over the report had been building since Mr. Trump was re-elected in November. His victory prompted Mr. Smith to drop both of the cases — one being heard in Florida, the other in Washington — under a longstanding Justice Department policy that prohibits pursuing criminal cases against sitting presidents.

But under separate Justice Department regulations, Mr. Smith is still obliged to file a report about his work to Attorney General Merrick B. Garland, explaining why he brought the charges he did and why he did not bring other charges he may have been considering.

In their court filing on Wednesday, prosecutors acknowledged that publicly releasing the volume about the classified documents case was legally problematic. That was because, even though Mr. Trump’s role in the matter has ended, the case is still active with regard to his two co-defendants, Walt Nauta and Carlos De Oliveira, and any new revelations about it could harm their efforts to defend themselves.

To avoid that harm, prosecutors said, Mr. Garland had decided, on Mr. Smith’s recommendation, not to release the classified documents volume until all proceedings against Mr. Nauta and Mr. De Oliveira were over. That process is likely to continue into Mr. Trump’s second term starting on Jan. 20.

At that point, Mr. Trump could pardon the men and end the case altogether. His appointees would then have the power to continue keeping that portion of Mr. Smith’s report secret.

Prosecutors said that while Mr. Garland would not make the volume about the documents case public, he did intend to make it available to the chairs and ranking members of the House and Senate Judiciary Committees, except for information that is covered by a grand jury secrecy rule.

It is possible that even the release of the volume on the election interference charges may not contain much in the way of new or revelatory information. That is because in October, Mr. Smith filed an exhaustive 165-page brief laying out the evidence he planned to offer at trial.

The Justice Department regulations on special counsels envision their final reports being “confidential.” But it has become common practice for attorneys general to make those reports public with some redactions.

That is what happened to a report about the ties between Russia and Mr. Trump’s 2016 campaign led by the special counsel Robert S. Mueller III as well as to the counter-investigation of the Russia inquiry run by the special counsel John H. Durham.

The struggle over Mr. Smith’s report began on Monday when Mr. Trump’s lawyers and lawyers for Mr. Nauta and Mr. De Oliveira began a multipronged attempt to stop it from coming out. The lawyers said they jumped into action after Mr. Smith’s deputies showed them a draft of the report last weekend.

Mr. Trump’s lawyers started by writing a letter to Mr. Garland, arguing that the draft they had seen was “one-sided” and “a lawless political stunt, designed to politically harm President Trump.” The lawyers also complained that the draft made “baseless attacks on other anticipated members of President Trump’s incoming administration.”

Moreover, the lawyers told Mr. Garland that Mr. Smith had no authority to file the report at all. In making that claim, they cited a decision by Judge Aileen M. Cannon, who dismissed the classified documents case this summer, ruling — against decades of precedent — that Mr. Smith had been unlawfully appointed to his job as special counsel.

Within a day of sending their letter to Mr. Garland, Mr. Trump’s legal team changed course, joining forces with lawyers for Mr. Nauta and Mr. De Oliveira in seeking to get a formal court order to stop the report’s release from both Judge Cannon and the appeals court that oversees her.

On Tuesday, their efforts paid off when Judge Cannon issued a surprising injunction blocking the report from coming out until the appeals court made its own decision on how to proceed. It was that ruling that prompted prosecutors to file their court papers on Wednesday, laying out how they intend to proceed with the report.

In those papers, prosecutors also asked the appeals court to overturn Judge Cannon’s injunction. They argued that she had been wrong when she ruled in July that Mr. Garland had no legal authority to appoint Mr. Smith as special counsel.

The conflict over Mr. Smith’s report was only the latest clash between the special counsel’s office and Judge Cannon, who has a history of issuing unusual rulings in Mr. Trump’s favor. Her decision to temporarily block the report from coming out raised eyebrows among several legal experts who said she had no legal authority to issue the injunction because the documents case was technically in front of the appeals court, not her.

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