Judge Allows Public Release of Volume 1, Blocks Volume 2 of Smith’s Report on Trump Cases

(Left) Special counsel Jack Smith delivers remarks in Washington on Aug. 1, 2023. (Right) Former President Donald Trump attends his trial in New York State Supreme Court in New York City on Dec. 7, 2023. Drew Angerer, David Dee Delgado/Getty Images

A federal judge has cleared the way for the public release of volume one of special counsel Jack Smith’s final report on investigations involving President-elect Donald Trump while opting to keep volume two of the report restricted.

Volume one pertains to Smith’s election interference case against Trump, while volume two relates to the classified documents case.

In a Jan. 13 order, U.S. District Judge Aileen Cannon partially denied an emergency motion by two Trump co-defendants—Walt Nauta and Carlos De Oliveira—to block the public release of the report. Nauta and De Oliveira had filed an emergency motion seeking to prevent the release of both volumes of Smith’s report, citing concerns that it would prejudice their pretrial rights.

Cannon upheld their request to restrict volume two, which pertains to a classified documents probe involving Trump in which Nauta and De Oliveira are co-defendants. The judge noted that the release of volume two would be “inconsistent” with the defendants’ right to a fair trial.

The Department of Justice (DOJ) argued that the selective release of volume two to congressional leaders was in the public interest but stopped short of advocating broader dissemination. Nauta and De Oliveira argued that releasing the volume, even in a limited capacity, could irreparably damage their legal position.

Cannon scheduled a hearing for Jan. 17 to address the DOJ’s request for limited disclosure of volume two to congressional leaders while withholding it from the public.

“Release of Volume II, even on a limited basis as promised by the United States, risks irreversibly and substantially impairing the legal rights of Defendants in this criminal proceeding,” Cannon wrote. “The Court is not willing to make that gamble on the basis of generalized interest by members of Congress, at least not without full briefing and a hearing on the subject.”

The judge noted that a portion of the hearing may need to be conducted under seal to prevent parts of volume two from being disseminated to the public.

However, Cannon agreed with the DOJ’s position that volume one contained no substantive references to the defendants or the classified documents case. Noting that there was “insufficient basis” to restrict the public release of volume one, Cannon cleared the way for its public release.

After Trump won the presidential election, Smith moved to dismiss the classified documents case and the election interference case against Trump, citing DOJ rules regarding not prosecuting presidents. The motions to dismiss were made “without prejudice,” meaning that charges could be refiled after Trump finishes his second term as president. However, the statute of limitations and the prospect that Trump pardons himself stand in the way of potential re-prosecution.

Federal law requires special counsels to prepare a final report outlining their prosecution decisions and submit it to the attorney general, who has the discretion to determine whether the report will be made public.

Attorney General Merrick Garland said last week that both volumes of Smith’s final report would be made public when the courts give it the green light.

Smith, who was appointed by Garland to investigate Trump in the two cases, resigned from the DOJ on Jan. 10, ending his criminal prosecutions of Trump over the past two years or so.

Trump has denied wrongdoing in the cases and has repeatedly described the prosecutions as politically motivated.