Justice Dept. Says It Won’t Yet Release Trump Classified Document Report

The Washington Post / Jeremy Roebuck, Perry Stein

14:47 JST, January 9, 2025

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 court filing Wednesday.

But prosecutors said Attorney General Merrick Garland will make public 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 portion about the classified documents probe.

The report could explain the strategy the government would have employed against Trump if either case had gone to trial, as well as the full scope of the evidence gathered against him.

“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 wrote in its filing before the U.S. Court of Appeals for the 11th Circuit in Atlanta.

The filing arrived a day after U.S. District Judge Aileen M. Cannon, the federal judge in Florida who oversaw the classified documents case before dismissing the charges last year, temporarily barred the Justice Department from releasing Smith’s report. Her ruling was in response to an argument from two others charged in the classified documents case, who said making the 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.

Attorneys for Nauta and De Oliveira took issue with that plan in their own filing Wednesday evening, fearing that members of Congress might leak the report. They urged the appellate judges to send the case back to Cannon for a full hearing on the issue.

“There is no way to restrain members of Congress from disclosing their opinions regarding the report, or from disclosing the contents thereof,” they wrote. “Nor is there a way to prohibit them from disclosing the materials to members of their staff, or to prevent members of their staff from then leaking the contents of the report.”

According to the Justice Department’s filing, it was Smith who originally recommended that the attorney general release only the election interference portion of the report until the litigation involving Nauta and De Oliveira concludes. In agreeing with that strategy, Garland will almost certainly hand the decision on whether the classified documents portion ever becomes public to Trump’s Justice Department.

Trump has said he will appoint several of his defense lawyers to top positions in that agency – including Todd Blanche, his pick for deputy attorney general, the No. 2 position in the Justice Department. 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.

Smith turned over the full special counsel report to Garland on Tuesday evening. It is typically the attorney general’s decision to decide which parts to release.

For now, the Wednesday filing says, Garland intends to allow only the chairs and ranking minority-party 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 indictment. Cannon had already dismissed the Florida classified documents case, which accused Trump of mishandling classified documents and alleged he, Nauta and De Oliveira obstructed government efforts to retrieve that material.

Smith was in the process of appealing Cannon’s dismissal of that 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 told people he intends to step down before Trump takes office, and the classified documents appeal has been transferred from the special counsel’s office to the U.S. attorney’s office in southern Florida. The motion Wednesday morning was filed by the principal deputy assistant attorney general at Justice Department headquarters and the top prosecutor in South Florida – not by Smith.