Topline
Special Counsel Jack Smith’s final report on his investigation into Trump’s efforts to overturn the 2020 election could soon be released, as a federal appeals court on Thursday greenlit its release—though Trump could still try to take the issue to the Supreme Court, and a second volume of Smith’s report will stay under wraps.
Special counsel Jack Smith speaks to reporters on June 9, 2023, in Washington, D.C.
Key Facts
The 11th Circuit Court of Appeals rejected a request by Trump and his co-defendents to block the release of Smith’s final report into his investigations against Trump.
The ruling means the report could be released within days—though it won’t be released immediately, as a lower court ruling remains in place that says the report can’t be released for three days after the appeals court rules.
Smith’s final report, coming after he dropped his criminal cases against Trump for allegedly mishandling sensitive documents and trying to overturn his 2020 loss, is in two volumes—one for each case—and explains the special counsel’s investigation and decisions behind prosecuting Trump.
Trump’s co-defendants, who are still being prosecuted for allegedly helping him withhold White House documents, asked the appeals court to block the entire report from being publicly released, arguing it would harm their prosecution.
Trump also asked the court to block the entire report—even though he’s not a party in the case anymore—because he claimed it would interfere with his presidential transition and “represents an equal, if not greater, infringement on the exercise of the executive power.”
Attorney General Merrick Garland doesn’t want to release the volume of Smith’s report covering Trump’s documents case while the prosecution continues, the DOJ said in a filing Wednesday, but prosecutors asked the 11th Circuit for permission to release the volume on Smith’s investigation into Trump’s efforts to overturn the 2020 election, after a lower Trump-appointed judge previously blocked it.
Trump’s spokesperson Steven Cheung has not yet responded to a request for comment.
What To Watch For
The appeals court’s ruling means the volume of Smith’s final report could be released as soon as this weekend, though Trump could try to appeal the case to the Supreme Court before it’s released. If he does and the high court decides to take up the issue or pause the report, it could mean the report will stay under wraps regardless of how they rule. If the dispute continues past Inauguration Day, Trump’s Justice Department is unlikely to publicly release the report given its criticism of the president-elect, even if the Supreme Court rules it can. Garland’s decision not to release the volume of the report covering the documents case until the prosecution ends against Trump’s co-defendants also likely means that part of the document will not be made public, as the case is expected to wrap up after Trump takes office.
What Does The Report Say?
It’s unclear what exactly is in Smith’s final report, and since much of his evidence against Trump has already been made public through court filings, it’s not clear how many new revelations the report could include. Trump suggested in his filing Wednesday the report does include new evidence, however, saying 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.” Smith has broadly accused Trump in the federal election case of violating the law through his wide-ranging plot to overturn the 2020 election, alleging Trump pushed false claims of fraud despite knowing they were false. He and his allies invented their election fraud claims “out of whole cloth,” Smith alleged in an October filing laying out prosecutors’ case against the ex-president. The filing also described how Trump pressured then-Vice President Mike Pence to refuse to certify the election results and, after Pence rebuffed his demands, allegedly showed little regard for Pence’s safety during the Jan. 6 riot. In the documents case, Smith broadly alleged Trump unlawfully withheld national security documents by bringing White House documents back with him to Mar-a-Lago after leaving office, including classified materials. Trump then allegedly obstructed the government’s investigation into those documents, Smith claimed, alleging Trump, with the help of his aides, intentionally concealed documents from his lawyer so that they wouldn’t be turned over to the government in response to a subpoena. Trump pleaded not guilty to both sets of charges against him.
Key Background
Smith was appointed special counsel to oversee the federal government’s investigation into Trump in November 2022, ultimately bringing two criminal cases against the ex-president. The special counsel dropped his cases after the presidential election, citing the DOJ’s policy of not prosecuting sitting presidents, and The New York Times reported in November he’s expected to resign ahead of Trump’s inauguration once his report is complete. Smith is required to submit a report to the attorney general on his investigations into Trump under the federal guidelines for special counsels, which state the third-party investigators must “provide the Attorney General with a confidential report” detailing why they decided to bring or not bring charges. It’s ultimately up to Garland to decide whether to make the final report public, and while the attorney general said he won’t make the documents case part of the report public for now while the prosecution continues, he’s traditionally released other special counsel reports in the past. The dispute over the report’s release began on Monday, when Trump’s co-defendants Walter Nauta and Carlos de Oliveira asked both U.S. District Judge Aileen Cannon, who oversaw the documents case in the lower court, and the 11th Circuit to block Smith’s report from being publicly released. Their filing also included a letter Trump sent to Garland asking him not to release the report, alleging—despite the federal rules requiring the final reports—that it was an unlawful document. Cannon, a Trump appointee, then blocked the report from being released until the appeals court could issue its decision.
Further Reading
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