President-elect Donald Trump’s legal team filed an emergency motion Monday in the U.S. District Court for the Southern District of Florida, seeking to block former Special Counsel Jack Smith from releasing a “report” on the case.
Judge Aileen Cannon, a Trump appointee, threw out Smith’s prosecution of Trump in the so-called “documents” case, which was already riddled with procedural problems, last July. She accepted the defense argument that Smith’s appointment was unconstitutional, since he was never confirmed by the U.S. Senate and was not a U.S. Attorney.
Trump’s legal team argued that Smith therefore has no authority to issue a report, and that doing so would not only hurt Trump, but would also damage the remaining two defendants in the case, Walt Nauta and Carlos de Oliveira.
In the filing, they wrote (original emphasis):
Despite this Court’s concluding that Smith is unconstitutionally appointed and funded, and despite ongoing proceedings against Defendants Waltine Nauta and Carlos De Olivera, Special Counsel Smith, in defiance of this Court’s rulings, is determined to have the final word by pushing forward with issuing and transmitting a final report under 28 C.F.R. § 608(c) (the “Final Report”) which Attorney General Garland is certain to make immediately public. These Defendants will irreparably suffer harm as civilian casualties of the Government’s impermissible and contumacious utilization of political lawfare to include release of the unauthorized Report. The Final Report relies on materials to which Smith, as disqualified special counsel, is no longer entitled access — making his attempt to share such materials with the public highly improper.
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The Final Report promises to be a one-sided, slanted report, relying nearly exclusively on evidence presented to a grand jury and subject to all requisite protections—and which is known to Smith only as a result of his unconstitutional appointment—in order to serve a singular purpose: convincing the public that everyone Smith charged is guilty of the crimes charged. But Nauta’s and De Oliveira’s criminal cases are not over; the appeal of this Court’s dismissal order by Smith is still pending. The Government notably continued briefing the appeal even following the dismissal of the appeal as to President Trump. There remains the threat of future criminal proceedings as to Nauta and De Oliveira, and those proceedings will be irreversibly and irredeemably prejudiced by dissemination of the Final Report. As the Government knows, the continued operation of the protective order in this case will make the one-sided impermissible Final Report even more unfairly prejudicial; Defendants are strictly precluded form refuting the Report. The Final Report is meant to serve as a Government verdict against the Defendants contrary to all criminal justice norms and constitutional guideposts.
Critically, the Government never sought a stay of this Court’s rulings as to the impermissibility of the Special Counsel appointment and his actions in regard to this prosecution. The Government never sought clarification of Fed. R. Crim. P. 6(e)(2)(B)’s prohibition of disclosure of grand jury materials by persons not authorized to act as government counsel in the matter, with limited exceptions that clearly do not apply to government attorneys found to have no authority to act in the case. Given the invalidity of his purported status under the Appointments and Apportionment Clauses, the invalidly appointed Special Counsel lacks authority to write a grand jury report, to file a report, to share information about the report, or to issue a report.
In October, barely a month before the election, U.S. District Court Judge Tanya Chutkan, who presided over the so-called “January 6” case against Trump in Washington, D.C., allowed Smith to file, and later released, a massive 165-page motion full of allegations against Trump.
The move was widely viewed as an effort to sidestep delays in the trial, and to influence the election, as Trump had no opportunity in court to rebut the claims that Smith had made, nor could Smith’s evidence be cross-examined.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of The Agenda: What Trump Should Do in His First 100 Days, available for pre-order on Amazon. He is also the author of The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency, now available on Audible. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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