‘Under no circumstances should the court order the release’: DOJ tells Judge Aileen Cannon she should cede control over Jack Smith’s final Mar-a-Lago report to the government

Left: FILE – Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo/J. Scott Applewhite, File). Center: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).

The U.S. Department of Justice banded together with the two remaining co-defendants in the Mar-a-Lago documents case to tell the judge overseeing the matter she should tread carefully with regard to the second volume of former special counsel Jack Smith’s final report on his investigations into President Donald Trump.

In a joint status report filed Friday, attorneys for the DOJ, Trump valet Waltine Nauta, and Carlos De Oliveira, the Mar-a-Lago property manager, took varying positions on the second volume of the report – but shared some key positions about its potential release.

“The United States understands and appreciates the arguments made by Waltine Nauta and Carlos De Oliveira regarding the prejudice they would suffer if Volume II were to be released,” the filing reads. “The United States, Waltine Nauta, and Carlos De Oliveira also agree that under no circumstances should the Court order the release of Volume II of Jack Smith’s confidential Final Report.”

There is currently a court order in place enjoining the DOJ and U.S. Attorney General from releasing the second volume beyond the walls of the nation’s top law enforcement agency. That court order, the filing says, can and probably should remain in place – at least for now.

But if the order is lifted, the co-defendants should be given a final parting gift from the Fort Pierce-based court, all the parties agree.

“The United States, Waltine Nauta, and Carlos De Oliveira further agree that if the Court lifts its Injunction Order, the Court should require the Department of Justice to provide written notice to counsel for Waltine Nauta and counsel for Carlos De Oliveira sixty days prior to releasing a redacted version of Volume II outside the Department of Justice,” the filing goes on. “This would allow the defendants to seek appropriate relief from this Court, if the Attorney General ever expresses an intention to release Volume II outside the Department of Justice.”

Drama over efforts to release the second volume took up several docket entries during the last days of the Biden administration.

The first volume of Smith’s report, released in January, is related to the Jan. 6 attack on the U.S. Capitol and efforts by Trump and his allies to overturn the results of the 2020 election. That volume contains all of two passing mentions to the Mar-a-Lago case – and they do not implicate Nauta and De Oliveira. The second volume concerns allegations that Trump and others mishandled classified documents.

U.S. District Judge Aileen Cannon, for her part, vociferously rejected lame duck attempts to have the second volume made public.

Now, the remaining interested parties are lodging some suggestions should the Trump-appointed judge have a change of heart.

To hear the DOJ tell it, the second volume of the report is essentially their property – and should remain so for the foreseeable future – because Nauta and De Oliveira are no longer being prosecuted.

From the filing, at length:

In the event the Court is inclined to lift the Injunction Order, the United States submits the decision to release Volume II to outside the Department of Justice should rest with the sound discretion of the Attorney General of the United States. The United States recognizes that when the Court entered its Injunction Order, Waltine Nauta and Carlos De Oliveira still faced the prospect of criminal trials on the charges contained in the Superseding Indictment. The Court’s Injunction Order was necessary and appropriate. At this juncture, the United States Attorney’s Office for the Southern District of Florida does not intend to revive the charges brought by Special Counsel Smith, and the Attorney General of the United States has not expressed an intent to release Volume II outside the Department of Justice. If the Court is inclined to lift the Injunction Order, it is the Attorney General’s prerogative to determine whether the release of Volume II “would be in the public interest[.]”

To that end, the DOJ says, the court should stay out of the matter going forward. The government even advises Cannon against conducting “an in camera review of the grand jury materials related to this prosecution.” Such a review, necessarily done behind the court’s own closed doors, while permissible under federal rules, would “be premature,” according to the DOJ, because neither the attorney general herself nor “any court of competent jurisdiction” has ordered such a review.

“Moreover, this Court has held that Jack Smith’s appointment violated the Appointments Clause of the United States Constitution, and therefore his investigation was invalid,” the filing goes on. “Finaly [sic], the Department of Justice, not the Court, is responsible for redacting any grand jury material in Volume II.”

Nauta and De Oliveira do not diverge too much from the DOJ – and they largely agree with the government’s arguments. But the duo does part, at least slightly, from the agency by reminding Cannon they do, in fact, remain in theoretical legal jeopardy.

“They appreciate and do not dispute that the Attorney General has given no indication that she intends to release the Report,” the co-defendants say. “However, the statute of limitations has not yet expired in this matter, and Mr. Nauta and Mr. De Oliveira respectfully request that the Court maintain its supervision over this exceptionally complex case and continue to enjoin the release of the Report, and that doing so would not be a usurpation of the Attorney General’s authority to release or withhold the Report under DOJ’s Special Counsel regulations.”

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Moreover, Nauta and De Oliveira say, what the second volume of the report says is not likely to inure to their benefit whatsoever.

“To start, permitting the release of the one-sided Report would also amount to an unjust use of court-controlled grand jury processes to effect further disparagement of Mr. Nauta and Mr. De Oliveira,” the filing continues. “They endured approximately a year-and-a-half of rampant pretrial publicity and vilification.”

But the reputational matters are not limited to public perception, the pair’s attorneys insist. Rather, the release of the second volume of the report would further harm them to the exclusion of their due process rights.

“The Report should be relegated to the dustbin of history, where it belongs, in order to prevent further unjust prejudice to Mr. Nauta and Mr. De Oliveira,” the filing says.

To that end, the co-defendants say, they want Cannon to retain jurisdiction over the matter and the report — in order to deny Freedom of Information Act requests for the second volume’s release and, they say, on the off chance that “jeopardy arguably remains for the defendants in this highly publicized and political case.”

‘Under no circumstances should the court order the release’: DOJ tells Judge Aileen Cannon she should cede control over Jack Smith’s final Mar-a-Lago report to the government

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‘Under no circumstances should the court order the release’: DOJ tells Judge Aileen Cannon she should cede control over Jack Smith’s final Mar-a-Lago report to the government

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