The new leadership at the Department of Justice has already raised a clear specter that it may be taking action that is political in nature and in violation of Department policy. The concern is its action — or, to be more precise, its inaction — that appears aimed at keeping from the public the second half of the Special Counsel Jack Smith final report about the classified documents criminal case, thereby helping to protect both the reputation of Donald Trump and the nomination of Kash Patel to head the Federal Bureau of Investigation.
To be clear, nothing prohibits, as a matter of law or DOJ policy, Department personnel from implementing lawful White House policy. That is a consequence of winning an election. But it goes without saying that prosecutorial decisions should not be based on the personal or political interests of the president. DOJ internal rules, for instance, provide that no action can be taken to aid a political party. (See, e.g., 9-85.500 “Federal prosecutors and agents may never …select the timing of any action, including investigative steps, criminal charges, or statements, ….for the purpose of giving an advantage or disadvantage to any candidate or political party.”)
What is at issue is whether, within days of the inauguration, we are already seeing the erosion of the norm, abided by Republican and Democratic administrations alike since the Nixon era, that the Department is supposed to be apolitical and represent the public, not a political party or particular politician. Indeed, that was one of the central themes Senators drummed home several times earlier this month during Pam Bondi’s nomination hearing for attorney general; and in which she stated the only right answer, “My oath would be to support and defend the Constitution of the United States of America. The people of America would be my client, and it is also my job to advise the president, my client are the people of America.”
But the prospect that the Justice Department is already being turned into a partisan vehicle on behalf of Trump is now all the more palpable when the acting Deputy Attorney General, Emil Bove, was just days ago the President’s personal criminal defense counsel. And when the acting Attorney General James McHenry abruptly and publicly fired career prosecutors who were assigned to Smith’s team, in what appears on its face to violate the civil service protections for career DOJ employees.
Here’s the issue I am focused upon: Right now the Department of Justice is prohibited from releasing Smith’s final report in the classified documents case because Judge Aileen Cannon has ruled that the two co-defendants in Florida, Messrs. Waltine Nauta and Carlos De Olivera, might be back before her. Recall, she had dismissed the case against all three defendants on the ground that Smith was improperly appointed and she ordered the criminal case closed. The Garland Department of Justice appealed that decision, although the appeal is pending solely with respect to the two co-defendants, since the Garland DOJ adhered to the policy that it could not continue a criminal case against a sitting president..
Everyone knows that with Trump now in office the Department will move to dismiss the case against Trump’s two co-defendants (as it has precipitously done with respect to all pending J6 defendants in Washington D.C.). Trump is hardly going to prosecute his two co-defendants, particularly since any trial will put front and center his own actions and result in his being a central witness in the case.
Yet, the Department has not moved to dismiss its appeal of the Cannon decision — the only live activity left in that case. At least, not yet. And there’s the rub.
It is hard to come up with a more plausible reason for the Department’s odd sloth – made all the more striking by the new administration’s lightning speed in dismissing the J6 cases – than to thwart any efforts by Democrats, reporters and others from gaining access to the Smith report.
Indeed, the only legal issue preventing the release of the Jack Smith Mar-a-Lago report is the pendency of that appeal— that is the reason given by former Attorney General Garland for not making it public, and it is the reason given by Judge Cannon for not even permitting then-Attorney General Garland to share the report with certain select members of Congress. Indeed, this evanescent stumbling block (ie the inevitability of Trump’s DOJ dropping the criminal case) led many (including this author) to wonder why former Attorney General Garland did not move to dismiss the Cannon appeal, so that he would be able to further the settled public interest in the release of as much of Special Counsel reports as possible.
This inaction of course protects Trump. But it also serves another function. By not moving to dismiss the appeal now, the Department does not risk the report being unveiled – a report that is likely to cast substantial doubt on factual assertions made by Kash Patel. It had been widely reported that Patel claimed to have witnessed Trump declassifying the documents wholesale. Presumably to learn about this claim, Patel was reportedly called to the grand jury by Smith and asserted his fifth amendment rights (as is well within his rights). But Smith is reported to have obtained an immunity order which would require Patel to then testify under oath in the grand jury. Whether he did so, and what he then said (to the grand jury and/or to investigators) is unknown. And what remains under seal as well is Smith’s presumably detailed factual refutation of Patel’s public claim.
Could there be a legitimate, alternative reason for a Department of Justice to maintain the appeal of Judge Cannon’s singular decision, which is at odds with every other court to have addressed the issue? For sure, but it seems highly unlikely that this Department is going to do so through the vehicle of this case. After all, Judge Cannon’s decision, even if erroneous, is not binding on any other future court.
And when this Department eventually dismisses the Cannon appeal as I believe it will – and thus eliminates belatedly the predicate for keeping the rest of the Smith report under wraps – we will all likely have a deeper awareness that it has been acting as a partisan all along. And not out of duty to the public it serves.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions