POLITICO (“Trump urges Garland to block release of Jack Smith’s final report“):
Donald Trump and two of his allies are making a last-minute push to block special counsel Jack Smith from issuing his final report on his two dismissed criminal cases against the president-elect.
Trump’s lawyers wrote to Attorney General Merrick Garland on Monday, urging him not to release Smith’s report — a two-volume document that they were allowed to review in Smith’s office over the past three days.
At the same time, two of Trump’s former co-defendants asked U.S. District Judge Aileen Cannon to block the Justice Department from releasing any report from the special counsel on the criminal case in Florida where Trump was charged with conspiring to retain a trove of classified documents after leaving office in 2021.
In the letter to Garland, Trump’s attorneys said that releasing a public narrative of the evidence Smith gathered — in the classified documents case as well as the federal election conspiracy case over Trump’s bid to subvert the 2020 election — would illegally interfere with the presidential transition and be little more than a political attack.
The decision about releasing Smith’s findings, they wrote, should be left to Trump’s administration.
They also called on Garland to immediately fire Smith, who is set to end his tenure by the time Trump is inaugurated.
“Because Smith has proposed an unlawful course of action, you must countermand his plan and remove him promptly,” Trump’s lawyers wrote.
As a matter of general principle, Trump’s lawyers have a point. I am foursquare against prosecutors releasing materials or, indeed, even making statements, about those whom they are not going to charge that might be prejudicial or otherwise damaging to their reputations. The job of prosecutors is to prove the guilt of those under investigation beyond reasonable doubt. If they can’t do that, they should STFU.
That principle does not hold, however, in the case of public officials. Despite the fact that I was going to vote for her, I thought the voters had a right to know the details of Hillary Clinton’s actions as Secretary of State in the matter of her illegal efforts to skirt classification procedures. This was especially true as she was asking to be made the chief classification authority.
I have now voted against Trump three straight times; four if you count the 2016 Republican primary. So, I’m hardly an unbiased source here. Still, I think the case for revealing the details of Smith’s investigation is even stronger than it was in Clinton’s case.
Comey’s investigation of Clinton was complete and he had decided, rightly in my then- and current judgment, that, while an ordinary government functionary would likely have been prosecuted for the same actions, the bar is simply higher for the Secretary of State. While that seems to violate the “no person is above the law” precept, the fact of the matter is that high government officials—in this case, a Presidentially-appointed, Senate-confirmed policymaker—is rightly accorded much more discretion.
Conversely, Smith’s investigation found that Trump was criminally liable and had already filed to prosecute him. The sole reason that the case is being dropped is that Trump has been re-elected President and it is a longstanding Justice Department policy that sitting Presidents can not be prosecuted. (Given the President’s Constitutional role as head of the Executive branch and therefore Chief Law Enforcement Officer, that’s a reasonable position.) Releasing his findings publicly, then, is the most he can do.
