An appeals court gave Attorney General Merrick Garland permission Thursday to release one volume of Jack Smith’s special counsel report after President-elect Donald Trump and his co-defendants in Florida fought to keep it under wraps.
The 11th U.S. Circuit Court of Appeals said in a brief two-page order that Garland could release the report as soon as Judge Aileen Cannon’s temporary hold on it expires. Cannon, a Trump appointee, has indicated that her order will lift by Sunday.
The appellate court’s decision came after Trump’s co-defendants, Walt Nauta and Carlos De Oliveira, made an emergency request to block the full two-volume report from being made public, arguing that they were still facing charges in the classified documents case and that its release would prejudice them.
Garland said in a letter to Congress on Wednesday that he plans to publish the volume of the report that corresponds to the 2020 election case against Trump but that he will only show the top members of the Senate and House Judiciary committees the volume pertaining to the classified documents case.
Nauta and De Oliveira could challenge the 11th Circuit’s decision by attempting to seek relief from the Supreme Court or from Cannon. Stanley Woodward, an attorney in the case, declined to comment.
Trump submitted an amicus brief in support of his co-defendants, arguing that since Cannon ruled this year that Smith was not lawfully appointed special counsel, Smith is not authorized to complete a special counsel report.
Trump’s spokesman Steven Cheung responded to the appeals court’s decision on Thursday by suggesting Cannon had the authority to extend her three-day block on the report, which he described as “an unconstitutional, one-sided, falsehood-ridden screed.”
“Today’s decision by the 11th Circuit keeps Judge Cannon’s injunction in place and prevents any report from being issued,” Cheung said. “It is time for Joe Biden and Merrick Garland to do the right thing and put a final stop to the political weaponization of our Justice system.”
Federal regulation requires special counsels to compile a confidential report explaining their prosecutorial decisions, and the attorney general has discretion over whether to publish it.
Trump’s attorneys had fumed in a letter to Garland on Monday about the prospect of the attorney general releasing either volume of the report to anyone. They said that after they reviewed a draft of it in recent days in Washington, they determined that making it public would create a “media storm of unfair criticism” that would interfere with Trump’s transition into the White House.
They also pointed to Cannon’s decision earlier this year to toss out all of the classified documents charges against Trump and his co-defendants after she found that Smith’s appointment as special counsel violated the Constitution. Smith has an appeal to her decision pending against Nauta and De Oliveira.
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Trump’s attorneys said the report functioned as a “partisan weapon” and that in it, Smith criticizes X, “baselessly attacks” Trump’s incoming administration officials, and affords Trump no presumption of innocence.
“The release of any confidential report prepared by this out-of-control private citizen unconstitutionally posing as a prosecutor would be nothing more than a lawless political stunt, designed to politically harm President Trump and justify the huge sums of taxpayer money Smith unconstitutionally spent on his failed and dismissed cases,” the attorneys wrote.
