The ultimate fate of Jack Smith’s final report about the federal investigations into President-elect Donald Trump has, for weeks now, been caught in limbo. Strange circumstances have created a Gordian knot out of the possible outcomes. It’s a real-life version of “When Worlds Collide” — a 1951 movie filled with plots and subplots as people scheme to survive the end of the world. Here, we have a clash of federal regulations, the slow-moving formalities of federal courts, and the looming presidential inauguration. What we’re left with is the dizzying spectacle, a damning report and a convicted felon just two weeks away from becoming president of the United States, after which time he will likely try to discredit and bury both the investigation and the report itself.
The current fracas over the release of Smith’s final report is a good example of the kind of issues judges wish they didn’t have to decide.
In the past week alone, the jostling has become almost unmanageable.
In the past week alone, the jostling has become almost unmanageable. On Tuesday, Judge Aileen Cannon temporarily enjoined the Department of Justice from releasing Smith’s final report until three days after the 11th Circuit Court of Appeals rules on the issue. Cannon, of course, is the Florida trial judge who previously dismissed the Mar-a-Lago documents case against Trump and two co-defendants after deciding that Jack Smith’s appointment as special counsel was unconstitutional.
On Wednesday, the Department of Justice filed a brief in the 11th Circuit stating that the final report had already been delivered to Attorney General Merrick Garland, as permitted by Judge Cannon, and that the report consisted of two volumes: Volume I discussed only the Washington, D.C., case involving election fraud, and Volume II discussed the Mar-a-Lago documents case. According to federal regulations, the decision whether to publicly release some or all of the special report lies squarely in Garland’s hands.
DOJ informed the court that it was Garland’s intention to publicly release most of Volume I, consistent with the public release of the previous reports prepared by special counsels Robert Mueller, Robert Hur and John Durham. But to avoid impacting the pending criminal prosecutions of Trump’s co-defendants Walt Nauta and Carlos de Oliveira, Garland committed to releasing most of Volume II only to the chairmen and ranking members of the House and Senate Judiciary committees until the conclusion of those criminal cases.
Then, on Thursday evening, the 11th Circuit issued a brief but puzzling order denying Nauta’s and de Oliveira’s emergency motion to stay the release of the final report, but instructing the DOJ that it could file a notice of appeal from Judge Cannon’s temporary injunction. This left in place Judge Cannon’s injunction prohibiting release until three days after the 11th Circuit’s decision. Smith and DOJ then filed a notice of appeal with the 11th Circuit to vacate Cannon’s order. This would allow them to release the report earlier. Nauta and de Oliveira, for their part, may decide to petition the U.S. Supreme Court for review.
Trump’s election in November has already led Smith and DOJ to pull many of its punches. Smith has dismissed the criminal indictments against Trump in both the election fraud and the Mar-a-Lago documents cases. He is reportedly ready to close the special counsel’s office and resign, leaving DOJ career prosecutors to handle the appeal of Judge Cannon’s dismissal of Nauta and de Oliveira’s cases. By not publicly releasing Volume II of the special report until the conclusion of those cases, Garland is adhering to DOJ policy and federal court rules.
As one might expect from a former federal appeals court judge, Garland will not violate a court’s order, even though most legal experts agree that Judge Cannon clearly exceeded her authority by enjoining the release of Volume I, which had nothing to do with the Mar-a-Lago documents case, and by issuing a ruling in a case that was now in the jurisdiction of the appellate court.
It’s a mess, and the current state of affairs highlights how ill-equipped the criminal justice system is to deal with a defendant who is a past and future president of the United States. These prosecutions were brought by President Joe Biden’s Justice Department. The cases were heard by life-tenured judges who may have been appointed by Biden or, bizarrely, Trump himself.
It is also challenging for a court system that puts a premium on defendants’ rights, with two levels of appellate review, to fit within the time limits set by election cycles. Moreover, anyone who clung to the notion that the rule of law applies equally to all has now had to face the reality that the president of the United States has expansive pardon powers and some immunity from prosecution that nobody else enjoys. Some judges have expressed reservations about the judicial branch determining the balance of power among the branches of government, even though they recognize they occasionally need to do so. Better, argue these judges, to avoid the courts entirely and resolve the matter through negotiation. Sixteen years ago, D.C. District Court Judge John Bates ruled in a different case that federal courts do have a role to play in determining the legitimacy of congressional subpoenas served on members of the executive branch. But, Judge Bates wrote, “the court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role.” Some judges have expressed reservations about the judicial branch determining the balance of power among the branches of government. Bates then quoted Supreme Court Justice Robert Jackson’s concurring opinion in a 1952 case: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Both Justice Jackson and Judge Bates recognized that none of the three branches of government perform perfectly in every situation, particularly when they bump up against each other. When that happens, both judges — believing that the court system is not the best forum for resolving these issues — urged compromise and negotiation by the parties. Unfortunately, without negotiation and compromise, the courts become the first resort instead of the last. That’s what has happened here. The final report is what is left of the two dismissed cases against Trump, and the courts are again pressed into service, this time to decide if all the evidence uncovered during the investigations will ever see the light of day. Perhaps the silver lining is that the country’s constitutional institutions are still fighting to survive, and that the courts, albeit at times reluctantly, still serve as a check on the powers of the other branches of the government.
Carol C. Lam
Carol C. Lam was a U.S. attorney for the Southern District of California and a federal prosecutor for 18 years. She also was a Superior Court judge in San Diego County. She is a legal analyst for MSNBC. 
