Jack Smith's Final Stunt

Smith left the Department of Justice on January 10 but not before pushing to release a bogus report and misleading the courts about the report's contents in the process.

In a footnote contained in a motion last week, the Department of Justice disclosed that Special Counsel Jack Smith officially resigned on January 10. Smith had announced his plans to leave the DOJ a few days after Donald Trump won the presidential election.

But it appears Smith, the losingest prosecutor in DOJ history, pulled one more stunt on his way out the door: sending an unnecessary and one-sided “report” on his two failed prosecutions of the incoming president to Attorney General Merrick Garland.

The president’s lawyers had learned of the report through media coverage. When they confronted Smith’s office, prosecutors originally agreed to let the attorneys view the draft in Washington over the December holidays, a proposal rejected by the president’s team. The attorneys then viewed the document during the first week of January and immediately sent a letter to Garland detailing their objections to the report’s release. (I explained here.)

The report consists of two volumes. Volume One, according to the DOJ, covers the January 6-related indictment of President Trump in Washington and Volume Two addresses the so-called classified documents case in Florida. After Trump’s victory, Smith moved to drop both cases.

But Smith did not drop the case against Trump’s two co-defendants in the documents case, Waltine Nauta, a longtime personal aide, and Carlos De Olivera. The men were charged in 2023 on the same indictment as Trump; one count accuses the three of “conspiring” to obstruct the investigation.

Lawyers representing Nauta and De Oliveira filed motions last week seeking to block release of the report, arguing any public disclosures would taint ongoing litigation against their clients. Judge Aileen Cannon, who presided over the document case and dismissed the indictment last year after concluding Smith’s appointment violated the Constitution, issued an order temporarily prohibiting the DOJ from sharing the report outside of the department.

That prompted a flurry of court action in both her courtroom and the 11th Circuit appellate court as the DOJ sought emergency relief from Cannon’s order and defense attorneys sought an extension to her order, which is set to expire Monday night.

In what appeared to be a compromise move, the DOJ stated that Volume Two, the section devoted to the documents case, would only be made available to the chairmen and ranking members (Democrats) of the House and Senate Judiciary Committee as long as the litigation remained active. (As if Jamie Raskin won’t immediately leak information to his buddies at CNN.)

The Last in a Long String of Lies and Dirty Tricks

On at least three occasions, the DOJ told the courts that Volume One did not involve the classified documents case. “Defendants appear to urge that the Attorney General should be enjoined from releasing any portion of the Final Report--including Volume One, which as noted, addresses the unrelated prosecution brought by the Special Counsel in Washington, D.C,.” DOJ prosecutors said in a January 8 motion. The DOJ added that attorneys for Nauta and De Oliveira were allowed to view Volume Two, “the only volume relevant to them.”

Another brief filed by the DOJ reiterated that “Volume One of the Final Report…does not relate to these Defendants.” And the DOJ told the appellate court as late as January 11 “nor does Volume One mention defendants Nauta or De Oliveira or their conduct at issue in this case.”

But those claims were not true. In response to an order issued by Cannon on Saturday, the DOJ admitted they had misrepresented the contents of Volume One: “Without referencing Defendants Nauta or De Oliveira, any conduct by them, any evidence against them, or the charges against them, Volume One does makes (sic) two references to the Classified Documents Case,” Principal Deputy Assistant Attorney General Brian Boynton stated in a January 12 filing.

Oops.

The disclosure represents more shady, dishonest conduct by the DOJ and the special counsel’s office specifically. Any mention of the classified documents case, even if the references do not specifically name Nauta or De Oliveira, of course implicate the two defendants.

Impossible to Disassociate Trump from his Co-Defendants in Docs Case

Nauta was the subject of several search warrants, including on his car and apartment, as the investigation accelerated following Smith’s appointment in November 2022. The DOJ tied Nauta to the origins of the classified documents “scheme” dating back to the end of Trump’s term. One search warrant--all were signed by Florida Magistrate Judge Bruce Reinhart, who signed the warrant authorizing the armed raid of Mar-a-Lago, accused Nauta of being “involved in at least two key movements of [Trump’s] boxes” including the boxes later transferred to the National Archives in January 2022, which allegedly resulted in the FBI’s investigation into Trump’s possession of classified documents. Nauta also moved boxes the DOJ alleged contained unlawful materials—although Smith’s prosecutors admitted during court proceedings last year that they could not prove it—prior to a voluntary search of Mar-a-Lago in June 2022.

During his testimony before a D.C. grand jury that same month, prosecutors grilled Nauta about his handling of the president’s things including documents. Nauta stated that he had helped pack up the White House in January 2021:

DOJ: “So when you say you've seen that multiple times in the residence, on what occasions did you observe Bankers Boxes in the White House residence?”

Nauta: “Just going in and out of his room while we were dropping off his laundry.”

DOJ: “So they would be kind of in the presidential bedroom or residential suite?”

Nauta: “Correct.”

DOJ: “Do you know what they contained?”

Nauta: “No.”

DOJ: “Ever had occasion to see into any of the Bankers Boxes in the residence?”

Nauta: “A couple of them did have—a lot of them actually had the boxes off them, and a lot of times it was—what we saw was newspapers.”

Given the extensive investigation into Nauta, how the hell can the DOJ insist any mention of the classified documents prosecution does not affect his case? Nauta, according to the DOJ, is tied to every stage of the alleged crime. There is no possible way for Jack Smith to reference the classified documents case without implicating Nauta.

Cannon has not yet ruled but considering the bad blood between herself and Jack Smith’s team, she likely will extend her order prohibiting the circulation of the report beyond the DOJ. And she probably will have some choice words in the process. (I will update this article once she issues a decision.)