Justice Dept. says it won’t yet release Trump classified document report

The Justice Department does not plan to publicly release special counsel Jack Smith’s findings on Donald Trump’s alleged mishandling of classified documents until litigation against his co-defendants concludes, according to a filing in a federal appeals court Wednesday morning.

But prosecutors said Attorney General Merrick Garland does intend to release the portion of Smith’s report outlining his investigation into Trump’s efforts to undo the results of the 2020 election – and to permit select members of Congress to review the withheld portions on the classified documents probe.

“This limited disclosure will further the public interest in keeping congressional leadership apprised of a significant matter within the Department while safeguarding defendants’ interests,” the Justice Department filing before the U.S. Court of Appeals for the 11th Circuit in Atlanta says.

Those assurances arrived a day after U.S. District Judge Aileen M. Cannon, the federal judge in Florida who had overseen the classified documents case before dismissing the charges last year, temporarily barred the Justice Department from releasing the report. Her ruling was in response to an argument from two others charged in the classified documents case, who said making Smith’s report public would negatively affect them in ongoing litigation.

Cannon’s order prohibited any public sharing of the report until three days after the 11th Circuit rules on a request from those co-defendants – longtime Trump employees Waltine Nauta and Carlos De Oliveira – to keep the entire special counsel report from public view.

Justice Department lawyers asked the appellate court to overturn that ruling in their filing Wednesday. That would clear the way for Garland to release the volume of the report dealing with the election interference case and share findings on the classified documents case with key members of Congress, although any decision by the 11th Circuit could also be appealed.

Lawyers for Nauta and De Oliveira have asked the appellate court for the chance to respond by Thursday morning before any ruling is issued on the matter.

In agreeing not to release Smith’s findings on the classified documents case until the litigation involving Nauta and De Oliveira concludes, Garland is almost certainly handing the final decision on making it public to Trump’s Justice Department. Trump has said he will seek to appoint several of his defense lawyers to top positions in that agency – including Todd Blanche, his pick for deputy attorney general. Blanche, who has represented Trump in three of his four criminal cases, co-wrote a filing to Cannon on Tuesday saying Smith’s report should be kept under wraps.

The special counsel turned over the full report on Tuesday evening to the attorney general. It is typically his decision to decide which parts to make public.

According to the filing Wednesday, Garland intends for now to allow only the chairman and ranking members of the House and Senate Judiciary Committees to review the classified documents volume – and only after they agree not to release any information from it publicly.

When Trump won the presidential election in November, Smith said he would wind down both of the federal cases against Trump, citing Justice Department regulations prohibiting the prosecution of a sitting president.

In the D.C. election interference prosecution, Smith asked a judge to dismiss the entire case. Cannon had already dismissed the Florida classified documents case, which accused Trump of mishandling classified documents and alleged he, Nauta and De Oliveira had obstructed government efforts to retrieve that material.

Smith was in the process of appealing Cannon’s dismissal of the case when Trump was elected to another term. Instead of abandoning the appeal, Smith dropped Trump as a party in the case. The Justice Department is continuing the litigation with Nauta and De Oliveira as co-defendants. Because they could still go to trial if the appellate court restores the indictment, Garland decided not to release that portion of the report and risk violating their rights, Justice Department lawyers wrote.

Smith has said he intends to step down before Trump takes office, and the classified documents appeal has been transferred to the U.S. attorney’s office in southern Florida to oversee. The motion Wednesday morning was filed by the principal deputy assistant general at Justice Department headquarters and the top prosecutor in South Florida – not by Smith.