Appeals Court Refuses To Block Jack Smith’s Final Trump Report—Here’s What We Know About It
by Alison Durkee · ForbesTopline
At least part of Special Counsel Jack Smith’s final report summarizing his lengthy investigations into President-elect Donald Trump and his allies could be made public within days, as a federal appeals court ruled Thursday that the Justice Department can release the report despite Trump’s efforts to keep it hidden.
Key Facts
Smith is reportedly expected to resign before Trump takes office Jan. 20, but has drafted a final report before he leaves, in accordance with federal policy requiring special counsels to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel”—meaning why Smith decided to indict Trump on the charges he brought, and why he decided against any possible additional charges that were under consideration.
Smith’s report will summarize his two investigations into Trump, one for the ex-president’s efforts to overturn the 2020 election and one for Trump’s alleged withholding of White House documents and alleged obstruction against the government’s investigation into them, after both criminal cases were dropped following Trump’s election.
The 11th Circuit Court of Appeals ruled Thursday the final report can be released, after Trump and his co-defendants in the documents case—whose prosecution is still ongoing—argued it should be kept private.
Attorney General Merrick Garland intends to keep the volume covering the documents case private until the prosecution is fully over, the DOJ said in a court filing this week, but the 11th Circuit’s ruling means the volume covering the 2020 election case could be released within days.
It’s unclear how much new information the report will include, given much of Smith’s evidence against Trump has already been made public through court filings, but Trump’s lawyers claimed in a filing Wednesday the report “goes into more detail about the alleged crimes President Trump and others supposedly committed and involves evidence that was never released to the public.”
When Could Jack Smith’s Report Be Released?
Despite the 11th Circuit’s ruling, the volume of Smith’s report covering the 2020 election won’t be released immediately. A lower court ruling by Trump-appointed U.S. District Judge Aileen Cannon remains in place that blocked the report from being released while the 11th Circuit was deliberating, and states the document cannot be released for three days after the appeals court rules. That means the report can’t be released until the weekend at the earliest—though Trump could ask the Supreme Court to block it before then. If the high court agreed and blocked the report even temporarily, that could mean the report will never be released. The legal dispute getting dragged on for even a few weeks, past Inauguration Day, means it would be up to Trump’s Justice Department to release it publicly—which is unlikely to happen, giving the report’s criticism of the president-elect. The volume of the report on the documents case is unlikely to be made public, as even if the prosecution against Trump’s aides end, by that point it would likely be up to Trump’s DOJ to decide the report’s fate.
When Will Jack Smith Resign?
Sources cited by The New York Times in November weren’t sure how long Smith planned to stay at the Justice Department before he ultimately leaves: While his goal is to leave before Inauguration Day, the Times notes those plans were still in flux and there could be “unforeseen circumstances” like last-minute court rulings that keep him around longer. Smith is trying to “finish his work and leave” before Jan. 20 and has “no intention of lingering any longer than he has to,” sources familiar with Smith’s plans told The Times.
What Will The Report Say?
It’s not clear what Smith’s final report will say, with the special counsel only noting in a court filing Tuesday that the report will be two volumes “explaining the Special Counsel’s prosecution decisions.” That being said, Smith has already detailed through numerous court filings how prosecutors believe Trump committed crimes by spearheading efforts to overturn the 2020 election and allegedly withholding White House documents, which he’s likely to repeat in his final report. Smith has detailed in election case filings—including a major one released in October—how prosecutors say Trump pushed election fraud claims after the 2020 election despite knowing they were false, alleging Trump was repeatedly told by those around him his fraud claims were untrue and seemed to believe it himself, telling his family, “It doesn’t matter if you won or lost the election. You have to fight like hell.” He and his co-conspirators, who weren’t indicted, undertook a number of efforts trying to change the results, including pressuring state lawmakers and then-Vice President Mike Pence, and orchestrating a “fake electors” scheme in which GOP officials submitted false slates of electors to Congress, according to prosecutors. Trump also allegedly took little action to stop his supporters from rioting Jan. 6, with Smith alleging Trump watched the attack on the Capitol building play out on TV from the White House dining room while drinking Diet Coke. When an aide told him Pence had to be moved to a secure location, Trump allegedly replied, “So what?” In the documents case, prosecutors allege Trump took White House records back to Mar-a-Lago with him and then intentionally refused to turn them over to the government. Trump knowingly concealed classified documents from being turned over in response to a government subpoena, Smith alleges, employing aides to move documents so his lawyer wouldn’t find them. The indictment against Trump also shows White House materials being stored throughout Mar-a-Lago, including in its ballroom, in his bedroom and by a bathroom toilet.
Will Trump Retaliate Against Jack Smith?
While Smith’s reported planned departure will spare Trump from firing Smith, as the president-elect has vowed to do, he could still try to seek revenge against the special counsel after taking office. Trump has previously suggested he wants to retaliate against Smith—one of many perceived enemies Trump could target in a second term—saying in interviews before the election he wanted Smith, who is not an immigrant, to be deported. House Judiciary Chair Rep. Jim Jordan, R-Ohio, sent a letter to Smith on Nov. 8 asking him to preserve all of his office’s records that could be relevant to a congressional inquiry, suggesting GOP lawmakers will also try to go after Smith in the coming months. “Jack Smith’s abuse of the justice system cannot go unpunished,” billionaire Elon Musk, who’s become one of Trump’s key advisers, tweeted in response to Jordan’s letter.
Key Background
Garland named Smith as special counsel in November 2022 to oversee the federal government’s Trump investigations, appointing the third-party investigator in order to avoid perceptions of bias as Biden and Trump were slated to face off in the presidential election. Smith went on to indict Trump on 44 total felony counts between the two criminal cases, marking the first time a sitting or former president had ever been indicted on federal charges. While the cases were both scheduled to go to trial before the election—in March for the election case and May in the documents case—Trump and his lawyers managed to successfully drag them out. The federal election case was put on hold for months while the Supreme Court weighed whether Trump has immunity from criminal charges, which took until July—too late to go to trial before Election Day. Cannon appeared to slow-walk requests in the documents case for long enough that she ended up indefinitely postponing the trial, before ultimately dropping the charges altogether. Trump has pleaded not guilty to the charges against him and has long decried his criminal cases as “witch hunts” designed to harm his presidential campaign and railed against Smith, calling the special counsel a “thug” who’s biased against him.