Left: Special Counsel Jack Smith (AP Photo/J. Scott Applewhite, File). Center: Aileen M. Cannon speaks remotely during a Senate Judiciary Committee hearing (U.S. Senate). Right: Donald Trump speaks with supporters at the Westside Conservative Breakfast, June 1, 2023, in Des Moines, Iowa (AP Photo/Charlie Neibergall, File).
Former special counsel Jack Smith has once again penned a letter to Congress, expressing his desire to testify out in the open in defense of his prosecutions of President Donald Trump, but there appears to be an unknown element: whether or how much he can say about the Mar-a-Lago classified documents investigation, given U.S. District Judge Aileen Cannon's heretofore refusal to release the report to the public.
The letter, submitted Thursday to the House Judiciary Committee Chairman Jim Jordan, R-Ohio, and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, suggested Smith is willing to correct "many mischaracterizations" about his Jan. 6 and Mar-a-Lago probes of Trump in a public forum at "open hearings."
In a recent interview, Smith said it was "absolutely ludicrous" that the president and his allies have persistently accused him of having been out to get Trump for political reasons.
On the Mar-a-Lago case specifically, which Cannon famously dismissed by finding Smith was unlawfully appointed, the ex-special counsel said "we had tons of evidence" that Trump willfully withheld classified documents and obstructed their return to the government.
"And the obstructive evidence, publicly saying these are my documents, or things like that, and I can keep them. The evidence to not give the documents back when the government even tried to get them back before there was a criminal investigation, those sort of things […] that helps prove willfulness," Smith said.
Whether Smith can say more than that, according to his Covington & Burling lawyers, remains to be seen, because that the last thing they want is for him to be "punished."
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"He is prepared to answer questions about the Special Counsel's investigation and prosecution, but requires assurance from the Department of Justice that he will not be punished for doing so," the letter said. "To that end, Mr. Smith needs guidance from the Department of Justice regarding federal grand jury secrecy requirements and authorization on the matters he may speak to regarding, among other things, Volume II of the Final Report of the Special Counsel, which is not publicly available."
As Law&Crime has reported, Cannon, a Trump appointee, issued an injunction in January that blocked the release of Volume II, given that Trump's former co-defendants, valet Waltine Nauta and Mar-a-Lago property manager Carlos de Oliveira, still had pending appeals.
Although those appeals in those scuttled cases were dismissed at the 11th U.S. Circuit Court of Appeals in February, the injunction remains in place to the present day, despite repeat efforts by intervening groups — the Knight First Amendment Institute and American Oversight — to undo the block.
Multiple reminders about the groups' attempted interventions have not moved Cannon to act. That inaction led another federal judge to reject the New York Times' Freedom of Information Act lawsuit to obtain Volume II.
Most recently, both the Knight Institute and American Oversight sought writs of mandamus at the 11th Circuit in late September, asking the appellate court to force Cannon to rule on whether or not to lift the injunction, to at least open the door to an expedited appeal.
The Knight Institute supported its arguments by calling Cannon's "six-month delay" — and counting — "manifestly unreasonable" and an affront to its "constitutional right of access to judicial records" that the public has a right to know about, given that Smith's Mar-a-Lago report "addresses allegations of grave criminal conduct by the nation's highest-ranking official."
To date, the 11th Circuit has not acted either.
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