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U.S. District Judge Aileen Cannon issued an order on Monday that could clear the way for the Justice Department to release the election interference case-related volume of special counsel Jack Smith’s final report. But further word from an appeals court and potentially the Supreme Court could affect when the public sees the report.
In that same order, Cannon also set a briefing schedule for this week and a Friday hearing over whether the classified documents case-related volume can be released on a limited basis to members of Congress. The DOJ previously agreed that it wouldn’t release the documents volume publicly while the case could still be revived against Donald Trump’s former co-defendants, Walt Nauta and Carlos De Oliveira.
Cannon dismissed the case last year against all three defendants and the government’s appeal of that dismissal is pending in the 11th U.S. Circuit Court of Appeals. After Trump won the latest presidential election, Smith dropped the appeal as to Trump, citing the DOJ’s policy against prosecuting sitting presidents. Smith has since left the DOJ and other department lawyers are handling this litigation over his report.
The defense filed motions seeking to block the report with both Cannon and the 11th Circuit. The appeals court rejected the defense motion last Thursday but declined to disturb a temporary injunction that Cannon issued last week, which would halt release of the report until Tuesday. In denying the defense motion, the circuit court noted that Cannon’s injunction wasn’t before the appeals court but that DOJ could appeal it to the circuit, which DOJ has since done and the circuit could issue a ruling anytime upending Cannon’s order.
“On the merits, the district court’s injunction cannot be sustained. It intrudes without basis on the Attorney General’s prerogative to manage the affairs of the Justice Department,” DOJ lawyers wrote to the circuit over the weekend.
The Supreme Court could also be asked to weigh in on an emergency basis ahead of Trump’s inauguration next week. His taking office changes the dynamic of this litigation in multiple ways. The DOJ under Trump could withdraw its appeal to reinstate the charges against Nauta and De Oliveira (or Trump could pardon them), which would remove the reason that current DOJ lawyers have agreed not to release that volume to the public. Relatedly, Trump would have new lawyers heading the DOJ that will determine how to proceed in the handling of the report and related matters.
Smith also moved to dismiss Trump’s election interference case following the election. Trump was the only defendant charged there, so the release of the volume related to that case doesn’t raise the issues presently in the classified documents case of potentially prejudicing co-defendants by publicly releasing negative information about them before trial.
After the Supreme Court cleared the way on a 5-4 vote, Trump was sentenced Friday in New York state court, in the only one of his four criminal cases that went to trial.
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