A Battle Over Jack Smith’s Secret Mar-a-Lago Dossier on Trump Is Brewing at Pam Bondi’s Department of Justice
Three lawsuits — including one from the New York Times — press the case that the special counsel’s final word belongs to the public.
Special Counsel Jack Smith’s final report on his prosecution of President Trump for storing classified documents at Mar-a-Lago is emerging as a flashpoint early in Attorney General Bondi’s tenure. A growing cluster of organizations hostile to the president is seeking to push the dossier into the public’s ken.
Mr. Smith’s dossier, which could contain new information that would reflect poorly on Mr. Trump, is written but has never seen the light of day. Judge Aileen Cannon of the Southern District of Florida blocked its release the weekend before Mr. Trump took the oath of office, reasoning that the 47th president’s two co-defendants — valet Waltine Nauta and property manager Carlos De Oliveira — still faced an active criminal case.
That case is now ended after the Department of Justice dropped the last vestiges of Mr. Smith’s prosecution as it pertained to those two men — an appeal authored by Mr. Smith that was lingering before the 11th United States Appeals Court. The special counsel wanted the circuit riders to overrule Judge Cannon’s decision that he was unlawfully appointed and that his charges were void. The charges against Mr. Trump were already gone on account of presidential immunity. So the ruling that Mr. Smith was wrongfully appointed in the first place remains in force.
Now comes Columbia University’s Knight First Amendment Institute, arguing to Judge Cannon “that there is no longer any legitimate reason to enjoin the report’s release.” The Knight Institute claims “a common law and First Amendment rights of access” to Mr. Smith’s final word. While the government has not yet filed its response, it is likely that it will argue that the decision of whether to release the report is Ms. Bondi’s to make.
The Knight Institute reasons that the “release of the document would serve an important societal interest by informing the public about the character and actions of the nation’s highest official, about one of the most significant criminal investigations in American history, and about DOJ’s understanding of the Espionage Act, a statute with broad implications for free speech.”
The institute’s motion comes on the heels of a Freedom of Information Act request to gain access to a redacted version of the Mar-a-Lago document. The Supreme Court held in 1979 that the public possesses a qualified right to “inspect and copy … judicial records,” and the Knight Institute asserts a “common law” guarantee of the “public’s right of access to judicial proceedings.”
The Nine held in a 1982 case, Globe Newspaper Co. v. Superior Ct. for Norfolk County, that with respect to criminal cases like this one, a “major purpose of [the First] Amendment was to protect the free discussion of governmental affairs” in order that “the individual citizen can effectively participate in and contribute to our republican system of self-government.”
Judge Cannon, who has reviewed the report, wrote in her ruling blocking its release that it contains information that “has not been made public in Court filings. It includes myriad references to information provided by the Special Counsel in discovery … and other non-public information.”
The judge also determined that “there is no ‘historical practice’ of providing Special Counsel reports to Congress, even on a limited basis, pending conclusion of criminal proceedings.” Those proceedings are now over, meaning that Judge Cannon’s injunction could be vulnerable to challenge.
The Knight Institute is just one among a troika of organizations seeking to force Judge Cannon’s hand. Another, American Oversight, filed a FOIA request at federal district court at Washington seeking access to the report, specifically passages relating to grand jury testimony by Mr. Trump’s then-nominee to lead the FBI, Kash Patel. He has since been confirmed by the Senate, which would appear to make that suit moot.
Also pushing for access is the New York Times, which has filed its own motion at the Southern District of New York. The parties are the Grey Lady and one of its legal correspondents, Charlie Savage. The Times writes that the contents of Mr. Smith’s report “are not known but they may be significant … they may shed light on President Trump’s motives for allegedly removing a trove of classified documents from the White House in 2021.”
The motion asserts that the contents of the report are “of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.” The newspaper, in urging that the request be granted, cites the “urgency to inform the public about an actual or alleged Federal Government activity.”
Even if Judge Cannon reckons that the reasoning blocking the report’s release has expired, it is not clear that she possesses the requisite authority to order its publication. That is because the special counsel regulations under which Mr. Smith operated mandate that the special counsel “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached.”
Discretion then belongs to the attorney general — now Ms. Bondi — to determine if releasing the reports would be in “the public interest.” Ms. Bondi has in recent weeks authorized the creation of a “Weaponization Working Group” to probe “Special Counsel Jack Smith and his staff, who spent more than $50 million targeting President Trump, and the prosecutors and law enforcement personnel who participated in the unprecedented raid on President Trump’s home.”
The fruits of that search include multiple photographs of document crates and file folders that were released as part of the now-defunct indictment. There are, though, reportedly many other finds from the search that never made it before a jury but that could be tallied in Mr. Smith’s final report, which now exists somewhere in Ms. Bondi’s files.
https://www.nysun.com/article/a-battle-over-jack-smiths-secret-mar-a-lago-dossier-on-trump-is-brewing-at-pam-bondis-department-of-justice
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