With special counsel Jack Smith’s final reports the subject of litigation and just over a week remaining until President-elect Donald Trump takes office, lawyers are skeptical about whether his findings will ever become public.
Under normal circumstances, special counsels submit a final report on their investigation to the Justice Department, which the attorney general may then choose to make public or not.
In the final days of President Joe Biden’s term, however, Trump’s attorneys, alongside his one-time co-defendants in the classified documents case in Florida, have been working to prevent the release of Smith’s final report on his investigation into Trump’s efforts to overturn the results of the 2020 election and his hoarding of classified documents at his estate, Mar-a-Lago.
Earlier this week, Trump’s co-defendants asked Judge Aileen Cannon to block the release of the special counsel’s report and on Wednesday Trump’s attorneys themselves asked the federal appeals court for the 11th Circuit to block the release of Smith’s final report.
That motion from the remaining defendants was denied by the 11th Circuit Thursday evening. However, an order from Cannon blocking the release of the report until three days after the 11th Circuit rules on the matter remains in effect. (Later Thursday evening, the Justice Department appealed Cannon's order.)
So far, the Justice Department has indicated that it plans to release the report in two volumes, with the first, concerning Trump's efforts to overturn the 2020 election, being released publicly, and the second, concerning Trump’s retention of classified documents, being released only to senior lawmakers in the House and Senate.
However, Trump and his one-time co-defendants' various moves to block and delay the release of the report — combined with the fact that Trump will soon assume office and thus control of the Justice Department — is causing some to question whether the full report will ever be released.
Barbara McQuade, who served as a US attorney for the Eastern District of Michigan, told Salon that “Donald Trump is clearly trying to run out the clock until he is sworn in on Jan. 20,” adding: “Once he gains control of DOJ, he can try to kill the report.”
McQuade said that the remaining two defendants in the classified documents case have a valid concern over the release of Smith’s report on the classified documents investigation and that the “volume of the report relevant to their case would need to be redacted to protect their interests,’ which she suspects the Justice Department has already done.
“While it seems that Smith could have issued his report sooner to avoid the risk that Trump would use friendly judges to run out the clock, ultimately, the report is subject to FOIA,” McQuade said. “Someday, when the investigations are closed, the public will learn the contents of the report.”
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Ty Cobb, a former member of the White House legal team in the first Trump administration, told Salon that he’s optimistic that the first volume of Smith’s report will be released before Trump takes office but that he doesn’t believe the second volume will become public.
“It should and there will be a lot of litigation, I expect. I expect media and public interest groups will move for its release at least at the conclusion of the proceedings of the two co-defendants,” Cobb said.
Cobb said he expected much of what’s contained in the final report to have already been public information, but that the final report would probably include substantiation of that information from new sources and witnesses.
“I think what you’ll see in the report is that each of the allegations in the complaint is reasserted but the evidence for those allegations gets expanded beyond what the public currently,” Cobb said.
Cobb also suspects that the issue could end up before the Supreme Court. Justice Clarence Thomas handles emergency matters arising from the 11th Circuit, meaning he could potentially delay making a decision until Trump assumes office and control of the Justice Department. But Cobb said he doesn’t think Chief Justice John Robert would let that happen, in part because the legal arguments coming from Trump’s team to block the release of both volumes are thin.
“There’s no legal issue. It doesn't tie in in any way to immunity or to transition,” Cobb said. “There’s no legal hook to get the intended transparency of the special counsel process to be obscured.”
Sarah Krissoff, a former U.S. attorney for the Southern District of New York, told Salon that she too thinks Trump's legal team will ultimately fail to block the release of Smith's work.
"It is hard to imagine that this issue will get traction with the Supreme Court," she said.
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