Just days ahead of Donald Trump’s inauguration, there’s a legal battle playing out in the classified documents case that captures how the outgoing and incoming administrations view justice and wield power. It’s a state of affairs in which Attorney General Merrick Garland playing it by the book will effectively aid Trump’s bid to keep special counsel Jack Smith’s report on the documents case under wraps.
Here’s where we’re at, and where we may be headed.
To recap, Garland already publicly released Smith’s volume on the federal election interference case. Trump was the only person charged in that case, and Smith moved to dismiss it after the defendant won the November election, citing the Justice Department’s policy against prosecuting sitting presidents.
Meanwhile, Trump-appointed Judge Aileen Cannon dismissed the documents case ahead of the election, reasoning that Smith was unlawfully appointed. The government’s appeal to reinstate the criminal charges against Trump and his co-defendants Walt Nauta and Carlos De Oliveira was pending when he won the election. Smith then moved to withdraw the appeal as it pertained to Trump (again due to that DOJ policy) but kept it going as to Nauta and De Oliveira. Smith then resigned (as expected), but the DOJ under Garland is still pressing the appeal. (Trump pleaded not guilty in all four of his criminal cases, with the only one of them that went to trial, in New York state court, resulting in a conviction.)
It’s that pending appeal against Trump’s former co-defendants that has led Garland not to release Smith’s documents volume, so as not to prejudice the case against them if it’s reinstated and they face a jury trial. Yet Cannon is still presiding over litigation this week, with a hearing set for Friday over whether the DOJ can share the report confidentially with certain members of Congress. So even if Cannon keeps going out on a legal limb in a way that benefits Trump, we’re not even talking about the public release of the documents volume while the appeal against Nauta and De Oliveira is pending.
On that note, it must be pointed out, the prospect of a trial against Nauta and De Oliveira is exceedingly unlikely. The reason has little to do with the quality of the government’s argument on appeal, which is strong. Rather, it’s the reality that the appeal won’t likely proceed against them for long; it’s fair to assume that either Trump’s DOJ would withdraw it or he’d pardon them.
No matter how the case likely disappears, its disappearance would remove the reason to hold back the public release of Smith’s documents report. But of course, Garland would be gone by then, and it would be Trump’s attorney general — and whatever distance they do or don’t have from Trump’s personal legal priorities — that decides how to handle the report.
This reality has led congressional Democrats this week to push Garland to drop the case against Nauta and De Oliveira “so that the entirety of Special Counsel Smith’s report can be released to the American people.” In a letter to the attorney general, they noted that Trump’s political victory “saved him from a public trial and robbed the American people of the opportunity to learn the meaning and details of his unpatriotic, reckless, and intentional abuse of national security information.” Keeping the full report from the public would, they write, be another means of allowing Trump to escape accountability.
Whatever the force of that argument, it would be surprising if Garland embraces it, even if he wants to. The reason the documents appeal is no longer pending against Trump is DOJ policy. There’s no formal reason to withdraw the appeal against Nauta and De Oliveira, even if, in all likelihood, it’s going away soon. That may well be the bottom line of Garland’s analysis. If so, then that by-the-book formalism will soon give way with Trump’s return. The incoming DOJ will be confronted on Day One with the fact that it’s pressing an appeal that, if successful, would reinstate charges against the president’s former co-defendants. In that event, the case would proceed toward trial in a prosecution that centers on the president’s alleged criminality surrounding national defense information and obstruction of justice. Safe to say, it’s hard to see that happening. So if Trump doesn’t quickly pardon his former co-defendants after he is inaugurated on Monday, then one of his DOJ’s first moves could essentially be the opposite of one of the Biden DOJ’s last, fittingly capping the latter’s tenure and setting the tone for the former. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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