Merrick Garland Should Drop the Florida Case and Release Both Volumes of the Report

I'd like to talk about why the DoJ should drop the 11th Circuit appeal of Judge Cannon's dismissal of the classified documents case against Nauta and DeOliveira.

Yesterday, I put out a call for people to email the Attorney General and ask him to order the US Attorney in the Southern District of Florida to drop the appeal that’s pending in the 11th Circuit Court of Appeals to reinstate the case against Trump’s co-conspirators Walt Nauta and Carlos DeOliveira.

If the DoJ withdraws their appeal, then Merrick Garland is free to release BOTH volumes of Jack Smith’s final report. When Jack Smith transmitted the volumes to Merrick Garland a couple of days ago, he included in his cover letter the recommendation that Garland not release volume II - the volume that pertains to the classified documents case - because you can’t release a report if a case is still pending. Just like when Bill Barr and Donald Trump tried to get Special Counsel Durham to release an interim report in his ongoing investigation into the Mueller probe.

If the report were released outlining all of Nauta’s and DeOliveira’s crimes, then the 11th circuit overturned Judge Cannon’s dismissal, the case would be back on track and Trump’s co-conspirators could face trial. The report would prejudice them, taint the jury pool, and Nauta and DeOliveira would easily win a dismissal.

But let’s be real. Donald Trump is either going to pardon them, or have his DoJ drop the appeal, and then refuse to release the report. These two are never going to face any consequences given the incoming administration, so why not just drop the case and release the report?

Judge Cannon dismissed the case wrongly, saying that Jack Smith was appointed and funded inappropriately, and many believe DoJ wants to resolve that mistake so DoJ can use Special Counsels for future investigations. But that can be resolved the next time someone appoints a special counsel. Inevitably, the aggrieved party will file a motion to dismiss based on Judge Cannon’s ruling, and we can adjudicate the legality of Special Counsel appointments then.

The only thing to consider is that if the case is dropped by Garland or the US Attorney in Florida, Volume II of the report could be more heavily redacted because of the rules surrounding privacy for parties not indicted, and DoJ would have to explain why they dropped the case. I have a feeling that’s why it hasn’t been done already - because DoJ would need a reason to drop the case against Nauta and DeOliveira besides “we just want to release the report.” They had a reason to drop the case against Trump, so there’s nothing barring the release of Volume I, but it could be hard to justify to a court the reasons behind dropping the case, which would no doubt be opposed by the defendants. That could threaten the release of the entire report.

But the (improper) temporary injunction against releasing the report filed by Judge Cannon expires tomorrow evening, and there are no regulations requiring the DoJ even show the report to the defendants. They explain they only did so because Special Counsel Hur gave a courtesy copy to Joe Biden (who didn’t use the courts to try to stop its release.)

Merrick Garland could, without seeking permission, release both volumes tomorrow night (barring any intervention by the Supreme Court) if the case is dropped against Nauta and DeOliveira.

So I’ll ask again. Please write to the Attorney general here.

Make sure to choose “Messages to the Attorney General” from the dropdown menu. Tell him to drop the 11th Circuit appeal regarding Carlos DeOliveira and Walt Nauta, and release both volumes of the report upon the expiration of Judge Cannon’s temporary injunction January 12th.

ONE CAVEAT: A very smart lawyer on BlueSky has said that even if Garland were to drop the appeal against Nauta and DeOliveira, he still couldn’t release Volume II because Cannon’s dismissal of the case as unconstitutional still stands. So unless and until the 11th circuit overturns her dismissal, Volume II can’t be released. Once her dismissal is overturned, THEN Garland could drop the case. That may be why Jack Smith left it there.

BUT: DoJ argued in their appeal that even if Cannon was right that Jack Smith was appointed and funded inappropriately, that would not undermine Garland’s authority to release the report:

The Attorney General is the senate-confirmed head of the Department of Justice and is vested with the authority to supervise all officers and employees of the Department. The Attorney General thus has authority to decide whether to release an investigative report prepared by his subordinates. That authority is inherent in the office of Attorney General. It does not depend on the lawfulness of the Special Counsel’s appointment to take action as an inferior officer of the United States or the Department’s specific regulations authorizing the Attorney General to approve the public release of Special Counsel reports. Indeed, the Attorney General would have the authority to decide whether to publicly release a report prepared and provided to the Department by wholly private citizens. Defendants’ objections to the Special Counsel’s appointment thus simply have no bearing on the Attorney General’s authority here.

~AG

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