Judge Orders DOJ to Submit Volume 2 of Jack Smith’s Report Into Trump Probes

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

A federal judge has ordered the Department of Justice (DOJ) to submit to the court volume two of special counsel Jack Smith’s final report on investigations into President-elect Donald Trump for review behind closed doors before its potential release to Congress.

In a paperless order filed on Jan. 15, U.S. District Judge Aileen Cannon directed the DOJ to deliver a copy of volume two—the part that pertains to Trump’s classified documents case—no later than by 2 p.m. on Jan. 16. The report will be reviewed in camera, meaning privately, to preserve the confidentiality of sensitive information and ensure compliance with previously issued protective orders.

Cannon recently ruled to allow the public release of volume one of the report, which addresses allegations of election interference. However, she blocked volume two, citing concerns that it might prejudice the pretrial rights of Trump’s co-defendants in the case, Walt Nauta and Carlos De Oliveira.

In her Jan. 15 order, Cannon also instructed government prosecutors to provide Trump’s attorneys a reasonable opportunity to review volume two prior to a Jan. 17 hearing, when the court will consider arguments related to the report and its implications.

“This hearing is a public hearing, but any discussions of specified content in Volume II will be conducted in closed, sealed session to preserve Defendants’ fair trial rights and to fully respect protective orders previously entered in this case,” the judge wrote.

Cannon’s order further addresses a motion to intervene filed by Trump, specifically concerning volume two of Smith’s report. She invited Trump’s counsel to file a notice by Jan. 16, confirming their intent to present arguments at the Jan. 17 hearing and identifying the attorney who will argue on Trump’s behalf if they proceed.

Trump’s motion highlights concerns over Smith’s report, particularly its potential transmission to Attorney General Merrick Garland and its possible public release. Garland has expressed his intention to provide volume two of the report to Congress for private review under strict conditions, with plans for eventual public release after court approval.

In the motion, Trump’s attorneys argue that Smith’s report contains untested and prejudicial claims, which could harm Trump’s presidential transition efforts and unfairly target him and his associates. They have requested injunctive relief to block the transmission and release of the report until the court resolves these issues.

The motion also raises broader concerns about the implications for presidential transitions, claiming that Smith’s proposal to release the report violates constitutional and legal standards.

“Smith’s proposal to issue a report violates the Constitution, the Transition Act, the Justice Manual, the Special Counsel Regulations, applicable ethical rules, and Local Rule 77.2,” Trump attorneys wrote. “And there is absolutely no valid basis for Smith’s efforts to rush to do so ahead of President Trump’s inauguration.”

Prosecutors have said in court filings that Trump’s request to block the release of the report is without merit.

Smith, who moved to dismiss both cases against Trump after his election victory, resigned on Jan. 10. Before stepping down, the special counsel prepared a final report consisting of two volumes, outlining his prosecution decisions. Such reports are typically submitted to the attorney general, who then determines whether they will be made public.

Garland has told congressional leaders that both volumes of the report would ultimately be disclosed to the public once cleared for release by the courts. Volume one has already been made public, while decisions surrounding volume two remain pending. The Jan. 17 hearing before Cannon, just three days before Trump’s inauguration, could be pivotal in deciding whether volume two will also be released.

Both cases against Trump were dismissed “without prejudice,” allowing prosecutors the option to refile charges after Trump completes his second term as president. However, potential re-prosecution faces obstacles such as the statute of limitations and the possibility that Trump could invoke his presidential powers to issue himself a pardon.

Trump maintains his innocence in the cases, claiming they were politically motivated. One case accused Trump of plotting to overturn the results of the 2020 election and the other alleged he unlawfully held classified documents at his Mar-a-Lago home.