John Jefferson
Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
Attorneys for President-elect Donald Trump quickly fired back at federal prosecutors who are trying to keep him from taking part in an upcoming hearing related to the final remaining issues in the fading Mar-a-Lago documents case against his former co-defendants.
Late Thursday, the 45th and 47th president filed his reply in further support of a motion to intervene in the case — aiming to directly dispel arguments lodged by the U.S. Department of Justice just hours before.
“President Trump’s voice is one the Court should hear,” the motion reads. “The People of this country overwhelmingly re-elected President Trump and entrusted him with the extraordinary responsibility of preparing for the Presidency and, at 12:01 P.M. on January 20, 2025, assuming the Oval Office.”
In formal terms, the extant proceedings concern Waltine “Walt” Nauta, Trump’s personal valet, and Carlos De Oliveira, Mar-a-Lago’s chief of maintenance, both of whom face federal charges. Those charges, however, are almost certain — and widely expected — to be dropped by the incoming Trump administration in a matter of days.
In real terms, and which DOJ attorneys noted in their own latest motion, the major remaining issue is whether or not U.S. District Judge Aileen Cannon should allow the limited release of the second volume of former special counsel Jack Smith’s final report on his Trump investigations. A hearing on the question is slated for Friday.
And Trump wants in. Either as a direct intervenor or as an amicus curiae — a legal term directly translated to “friend of the court.”
The first volume of Smith’s report, released earlier this week, is related to the Jan. 6 attack on the U.S. Capitol and efforts by Trump and his allies to overturn the results of the 2020 election. This version of the report has two passing mentions to the Mar-a-Lago case that do not implicate Nauta and De Oliveira. The second volume concerns allegations that Trump and others mishandled classified documents.
The procedural posture of the upcoming hearing is a motion for an injunction filed by Nauta and De Oliveira, who claim the second volume of the report contains “highly prejudicial information” and that publicizing such information would violate their due process rights.
In the government’s Thursday motion, prosecutors said Trump, however, has no rights at stake in the ongoing litigation.
“President Trump possesses multiple Constitutional and federal rights that will be ‘implicated’ by the ‘resolution’ of the Injunction Motion and warrant intervention,” his motion argues.
Trump’s attorneys say the foremost right implicated here is a product of the presidency itself — a right which is undergirded by the executive vesting clause of the U.S. Constitution. This clause, the motion argues, suggests “the President-Elect must prepare for his imminent assumption” of the executive power to run the country.
“This intense period of preparation — a period that the Constitution deliberately creates — ensures that the incoming President will be fully equipped to fulfill his unique and extraordinary obligations as our Nation’s Chief Executive,” the motion reads. “Arising from this Constitutional structure is an indispensable right for the President-Elect to prepare for office without interference from the outgoing administration.”
To hear Trump tell it, the release of the second volume of Smith’s report, even in putatively limited form, is little more than a parting blow of political harassment by a Biden administration and Democratic Party on the outs with the corridors of power.
The Trump motion leans heavily into this concept.
“Rather than respecting this Constitutional right, the government — at the direction of an Attorney General who will resign in less than four days — seeks to unlawfully transmit an unprecedented array of false and derogatory case information, compiled by an unconstitutionally appointed private citizen, to President Trump’s political opponents in Congress, including individuals who have already publicly and viciously criticized President Trump and the Court in relation to this case,” the filing reads. “The government does this despite knowing that these political actors will have every ability and incentive to use such information to undermine President Trump’s transition and his ability to govern our Nation moving forward.”
Litigation over the second volume has been intense — and even moved back and forth up the appellate ladder in a matter of days. The government, for its part, claimed the release will be strictly cabined and controlled — not public or publicized at all.
On Wednesday, in a related court filing, U.S. Attorney General Merrick Garland’s lieutenants told Cannon she “lacks the authority to intrude on the Attorney General’s prerogative” to release the second volume to the chairs and ranking members of the House and Senate Judiciary Committees. This, the DOJ says, is because Garland has wide latitude to manage his interactions with Congress as he sees fit.
In his filing, Trump rubbishes the notion that congressional Democrats on either committee will keep the information to themselves.
Again, the motion, at length (emphasis in original):
[T]he government is not seeking, as it claims, to aid Congress in exercising its “oversight functions.” Instead, by delivering Volume II to unashamed partisans, the government strategically aims to ensure the Volume’s public release. Although the government claims that a purported “agree[ment] to specified conditions of confidentiality,” would alleviate these concerns, it would do nothing of the sort. As the government well knows, the Constitution prohibits any enforceable restrictions on the ranking members’ use or disclosure of information in furtherance of their official duties. The ranking members could, for example, stand on the floor of the House or Senate and disclose the entire contents of Volume II, without fear of any legal consequence. Thus, whatever “confidentiality agreement” the government purports to adopt (the terms of which the government has pointedly not provided the Court), it is entirely illusory, because no such agreement is enforceable. Disclosure to the ranking members is functionally equivalent to public disclosure. This, in turn, poses an extraordinary danger to President Trump’s ability and right to prepare for the Presidency free of such unconstitutional attacks by the incumbent administration.
Trump’s motion also argues that a president-elect has the right to be free of “disruptions” under the Presidential Transition Act — and releasing Smith’s second volume would be “the exact opposite” of that.
The once and future president goes on to argue that his more basic constitutional rights are at stake in at least two major ways.
“[I]t is inherently improper and contrary to Due Process for the government to falsely accuse President Trump of crimes in communications to members of Congress, while denying him the ability to contest those allegations and exonerate himself before a neutral adjudicator,” the motion goes on.
While the immediately-above argument is somewhat amorphous, the immediately-following argument in the motion speaks to something more concrete — though admittedly quite unlikely.
“In Smith’s motion to dismiss his wholly meritless appeal as to President Trump, Smith claimed that the Court’s underlying dismissal was without prejudice,” the motion goes on. “[T]he government wrongly believes that it may obtain another indictment and bring President Trump to trial, notwithstanding its dismissal. Although this may be exceedingly unlikely given the facts, law, procedural posture, and (most prominently) President Trump’s complete innocence, the possibility still exists. Thus, President Trump has an overriding right and interest in preventing prejudice to any potential future trial, notwithstanding the unlikelihood of that trial.”
Late on Thursday, Nauta and De Oliveira also filed a reply in further support of their motion to preclude release of Smith’s full report.
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