Merrick Garland Must Release Jack Smith’s Final Report
The special counsel has just over two months to wrap up his work.
SPECIAL COUNSEL JACK SMITH is closing up shop, with a final task ahead of him: the drafting and filing of reports to outgoing Attorney General Merrick Garland on his investigations and indictments of Donald J. Trump.
One of Smith’s two cases is still pending in Washington, D.C., the one relating to Trump’s role in the attempt to overthrow the 2020 election, including by instigating the January 6th insurrection. The judge and the parties are in the midst of sorting out how to deal with the Supreme Court’s immunity ruling in Trump v. U.S.
The other case—filed in Florida for Trump’s taking of classified documents to his Mar-a-Lago resort and then allegedly obstructing justice when the U.S. government sought their return—was already dismissed by the judge in a ridiculous ruling.
The New York Times reported Wednesday that Smith plans to wind down both investigations in the wake of Trump’s election victory on November 5, rather than pursue them under the auspices of his regulatory independence. He has little choice in the matter: Trump has said last month that he would fire Smith within “two seconds” of being sworn in as president on January 20, 2025.1 Hence Smith’s apparent intention, as the Times reports, to resign along with his team sometime before then.
Which means Smith now has fewer than seventy days to complete his work—including his final report. Under the special counsel regulations, Smith is required to provide the attorney general, “at the conclusion of the Special Counsel’s work, . . . with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” Garland must then “notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress.”
Smith must decide whether to complete two separate reports covering the two distinct investigations or a single report encompassing both. Either way, just over two months is not a lot of time to assemble final reports covering such large investigations, so Smith’s team will need to work fast. Recall that Special Counsel Robert Mueller’s report into Russian interference in the 2020 election and Trump’s efforts to obstruct that investigation spanned nearly 450 pages. Independent Counsel Kenneth Starr’s report into the Whitewater investigation of the Clintons stretched to 445 pages, and included 36 boxes of sealed grand jury material.
Will there be any surprises in what Smith writes? Although much of the story around January 6th has long been public—and the House January 6th Committee’s final report is impressively comprehensive—the scope of the damage to national security inflicted by Trump’s cavalier handling of classified information remains secret.
Which brings us to the question of whether Garland will publish Smith’s reports. The regulations say that it is exclusively up to the attorney general to determine whether “public release of these reports would be in the public interest.” Presumably, he will make large parts of the report public—as he did with Special Counsel Robert Hur’s report regarding classified documents found at the home of the president who appointed him, Joe Biden, a move that triggered sharp critiques from the left.
Looming over Smith’s and Garland’s decisions is the specter of the ex-president who is now the incoming president. Trump has promised vengeance through his Justice Department, which he announced on Wednesday will be led by Rep. Matt Gaetz (R-Fla.) as attorney general, if Trump gets his way.
It’s worth keeping an eye on two categories of information that could be released in Smith’s final reports: classified information and grand jury records. Biden could declassify parts of the Mar-a-Lago records for no other reason than to preserve for posterity the facts regarding Trump’s alleged national security crimes. If the records of the investigation aren’t declassified and published before the change in administrations, Trump will undoubtedly order them all destroyed—an action that the Supreme Court’s ruling in Trump v. U.S. would insulate from scrutiny.
As for the grand jury material, which underlies both cases, it can only be released under Rule 6 of the Federal Rules of Criminal Procedure if U.S. District Judge Tanya Chutkan in D.C. (possible) and U.S. Judge Aileen Cannon in Florida (impossible) sign off. (That’s how Starr made public the Clinton grand jury material.)
In the meantime, anyone who worked on the investigations—prosecutors, FBI agents, paralegals, analysts—will have to worry about getting a new job. Given Trump’s vow to retaliate against those involved in prosecuting him, some might find themselves consulting a criminal defense lawyer, too.
There are regulations stipulating that the president cannot fire a special counsel—only an attorney general can, and only for good cause. Trump’s attorney general would surely be all too happy to fire Smith if the special counsel were still hanging around on January 20.
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