Preparation And Release Of A Report Would Serve No Valid Purpose

¶There are many practical and prudential reasons to obey the law here. Preparation and release of a report by Smith would not "be in the public interest."²⁸²⁸ See ECF No. 252 at 20-21 & nn.88-91; SCO-00455536, SCO-12987478 (Donald J. Trump Retweet 12/06/2020); SCO-00455538, SCO-12858634 (Donald J. Trump Tweet 12/06/2020); SCO-00767550 at 43-49 (HSC Tr.); SCO-11540788 at 51-53 (Int. Tr.). C.F.R. § 600.9(c).

¶In 2023, Smith and his Office levied extremely serious, and entirely false, allegations against President Trump in two separate cases. Smith has now been forced by the rule of law to dismiss both of those cases. It would be highly improper and contrary to the public interest-as well as inconsistent with the reconciliation and public healing process that is necessary following divisive and unconstitutional actions by Smith-to allow him to create and disseminate yet another document recycling politically motived and inaccurate claims that the law has forced him to abandon. Indeed, "no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights." In re Smith, 656 F .2d 1101, 1106 (5th Cir. 1981 ). Smith lacks the credibility that is necessary for such a report to be reliable or valuable to anyone, as his biased and unlawful approach to these cases has been widely-criticized and discredited from the outset.⁵⁵ WSJ Editorial Board, Jack Smith Loses in the People's Court, WSJ (Nov. 7, 2024, 5:52 PM), https://vvww.wsj.com/opinion/donald-trump-prosecutions-jack-smith-fani-willis-alvin-bragg-juan merchan-lc68f640; Jonathan Turley, Opinion: Donald Trump just won the greatest jury verdict in American history, The Hill (Nov. 6, 2024, 10:56 AM), https://thehill.com/opinion/campaign/4976533- trump-prosecutions-lawfare-end; Elie Honig, So What Happens With All the Cases Against Trump Now?, N.Y. Mag. (Nov. 8, 2024), https://nymag.com/intelligencer/aiiicle/what-will-happen-with-the-charges against-trump.html.Show full note Quite appropriately, he is the subject of an ongoing investigation by the Office of Professional Responsibility, further diminishing any value from a report.⁶⁶ Letter from Chairman Jim Jordan to Jeffrey Ragsdale, DOJ OPR (Dec. 4, 2024) https://www.scribd.com/document/800789357/Judiciary-to DOJ?secret_password=vphCtDdh3lHj7mTM5Ib8. Smith's unlawful plan would reinforce the "likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next." Trump, 603 U.S. at 640. "The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid." Id.

¶At 1999 hearings relating to the Independent Counsel Act, Ted Olson argued that "the final report ... has turned into an excuse to file long exhaustive expositions which rationalize the investigation," as well as "offer opinions regarding and/or pronounce judgments on the individuals investigated, and generally make the Independent Counsel look good."⁷⁷ The Future of the Independent Counsel Act: Hearings before the S. Comm. on Governmental Affairs, Attorney General Janet Reno pointed out, more succinctly, that "the price of the final report is often too high."⁸⁸ The Future of the Independent Counsel Act: Hearings before the S. Comm. on Governmental Affairs, Deputy Attorney General Eric Holder

¶January 6, 2025

¶Page 9 added: "the reporting requirement goes directly against most traditions and practices of law enforcement and American ideals. "⁹⁹ See, e.g., ECF No. I at ,r 11; see ECF No. 252 at 10-14 & nn.29-53; SCO-00014655 at 37-44; SCO-00689680 (Michael Balsamo, Disputing Trump, Barr says no widespread election fraud, ASSOCIATED PRESS, Dec. l, 2020); SCO-00764172 at 21-25 (HSC Tr.); SCO-11506911 at 96-97, 116, 125 (Int. Tr.); SCO-04957448 at 28-31 (SJC Tr.); SCO-00775937 at 57-64 (HSC Tr.); SCO-04952679 (Tweet l l/17/2020); SCO-12929351 (Tweet 11/12/2020); SCO-Show full note Based on this feedback, Congress permitted the Independent Counsel Act to expire, and DOJ promulgated a reporting regulation that was much more restrictive than its statutory predecessor.¹⁰¹⁰ See, e.g., ECF No. 252 at 9-14 & nn.29-53, 17-18 & n.69, 21 & n.95, 25; SCO-12920242 at 1-7 (Int. Rep.).

¶For the quarter century that DOJ has operated under these Regulations, DOJ has not released a single Special Counsel report concerning any individual who has mounted a successful defense in court, as President Trump has done with respect to Presidential immunity. For good reason: the Special Counsel Regulations state that the purpose of a report is to "explain[] the prosecution or declination decisions."²⁸²⁸ See ECF No. 252 at 20-21 & nn.88-91; SCO-00455536, SCO-12987478 (Donald J. Trump Retweet 12/06/2020); SCO-00455538, SCO-12858634 (Donald J. Trump Tweet 12/06/2020); SCO-00767550 at 43-49 (HSC Tr.); SCO-11540788 at 51-53 (Int. Tr.). C.F.R. § 600.8(c). When filing and resolving a case in Court, that information, together with the defense's responses, becomes part of the public record. An additional, one-sided report, would only sow confusion and undermine the judicial process.

¶Here, Smith has explained himself, and sought unsuccessfully to justify his actions, ad nauseum. This has included routinely leaking sensitive details regarding the actions of Smith's Office to the media in violation of DOJ policy. In October 2024, it was leaked that Smith planned to "pursue his two cases against Mr. Trump for as long as he has the legal authority to do so-including during the period between Election Day and the inauguration, when Mr. Trump, if he prevails, would be president-elect."¹¹¹¹ Id. A similar July 2024 report cited "a person familiar with Mr. Smith's thinking."¹²¹² Alan Feuer, Special Counsel Is Said to Be Planning to Pursue Trump Cases Past the Election, N.Y. Times (July 2, 2024), https://wv.w.nytimes.com/2024/07 /02/us/politics/jack-smith-trump-charges.html. As another example, we first learned from the media, rather than Smith's Office, that they were considering dismissing the prosecutions of President Trump.¹³¹³ Pierre Thomas et al., Special counsel Jack Smith expected to wind down Trump prosecutions: Sources, ABC News (Nov. 6, 2024, 3:26 PM), https://abcnews.go.com/Politics/special-counsel-jack-smith expected-wind-trump-prosecutions/story?id=l 15571646; Devlin Barrett, Jack Smith Assesses How to Wind Down Trump's Federal Cases, Official Says, N.Y. Times (Nov. 6, 2024), https://www.nytimes.com/2024/l l/06/us/politics/doj-trump-federal-cases.html. Blanche Law PLLC 99 Wall Street, Suite 4460 New York, NY 10005 I (212) 716-1250 www.BlancheLaw.com IShow full note And we learned for the first time via private outreach from media sources, rather than Smith's Office, that Smith is working on a report.⁹⁹ See, e.g., ECF No. I at ,r 11; see ECF No. 252 at 10-14 & nn.29-53; SCO-00014655 at 37-44; SCO-00689680 (Michael Balsamo, Disputing Trump, Barr says no widespread election fraud, ASSOCIATED PRESS, Dec. l, 2020); SCO-00764172 at 21-25 (HSC Tr.); SCO-11506911 at 96-97, 116, 125 (Int. Tr.); SCO-04957448 at 28-31 (SJC Tr.); SCO-00775937 at 57-64 (HSC Tr.); SCO-04952679 (Tweet l l/17/2020); SCO-12929351 (Tweet 11/12/2020); SCO-Show full note Reauthorization of the Independent Counsel Statute, Part I: Hearings Before the H Comm. on the Judiciary, l 06th Cong.⁸⁶⁸⁶ See ECF No. 252 at 64 & nn.344-345, 65 & n.353; SCO-11618747 at 156-158, 166-169 (Text messages from Co-Conspirator 601/02/2021-01/05/2021); SCO-02301015 at 4 (Presidential Daily Diary 01/04/2021). (1999) (prepared statement of Deputy Attorney General Eric Holder)

¶1° Compare 28 U.S.C. § 594(h)(l)(B) (calling for a "final report ... setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought"), with 28 C.F.R. § 600.8(c) (calling for "a confidential report explaining the prosecution or declination decisions reached by the Special Counsel").

¶January 6, 2025 Page 10

¶In addition to the leaks, Smith filed four gratuitous speaking indictments, held a lawless press conference before the national media, and filed hundreds of pages of briefing in two district courts, two Courts of Appeals, and the Supreme Court. Smith's inappropriate 165-page "Motion For Immunity Determinations," accompanied by a 1,885-page "Appendix," is an especially egregious example of Smith's proclivity to seize all available opportunities to issue lengthy diatribes attacking President Trump based on Smith's biased view of the law and evidence.¹⁴¹⁴ ECF No. 252, United States v. Trump, No. 23 Cr. 257 (D.D.C. Oct. 2, 2024). Smith insisted on the filing, which even Judge Chutkan characterized as "atypical,"¹⁵¹⁵ ECF No. 243 at 2, United States v. Trump, No. 23 Cr. 257 (D.D.C. Sept. 24, 2024). to further publicize his narrative in the lead-up to the Presidential election. Smith's tome was not responsive to a defense motion, had no basis in the Federal Rules of Criminal Procedure, and violated DOJ's election-interference policies and practices. See, e.g., Justice Manual § 9-85.500.¹⁶¹⁶ See also A Review of Various Actions by the Federal Bureau oflnvestigation and Department of Justice in Advance of the 2016 Election, U.S. Dep't ofJustice Office of Inspector General (June 2018) at 18 ("[I]n general, the practice has been not to take actions that might have an impact on an election, even if it's not an election case or something like that."), available at https://s3 .documentcloud.org/documents/4515 884/DOJ-OI G-2016-Electio_n-Final-Report.pdf. Blanche Law PLLC 99 Wall Street, Suite 4460 I New York, NY 10005 (212) 716-1250 I www.BlancheLaw.comShow full note Having previously insisted on highly restrictive protective orders that prevented dissemination of discovery, based in part on histrionic, unsupported claims about witness identities, Smith abandoned those arguments and released the contents of protected reports, grand jury material, and accounts from thinly-veiled witnesses whom the media immediately identified.

¶Under these circumstances, there is no legitimate need for an additional "report" to "explain [Smith's] prosecution or declination decisions."²⁸²⁸ See ECF No. 252 at 20-21 & nn.88-91; SCO-00455536, SCO-12987478 (Donald J. Trump Retweet 12/06/2020); SCO-00455538, SCO-12858634 (Donald J. Trump Tweet 12/06/2020); SCO-00767550 at 43-49 (HSC Tr.); SCO-11540788 at 51-53 (Int. Tr.). C.F.R. § 600.8(c). His baseless rationales for prosecution are already fully public. So too is the selective description that his Office prepared of the legal basis for the motions to dismiss, which Smith's Office caused OLC not to further memorialize in violation of the Brady doctrine and DOJ policy. Moreover, the Draft Report goes far beyond merely explaining Smith's "prosecution or declination decisions," deviating instead into extensive and irrelevant discussions on purported "litigation issues," including post-indictment immunity litigation and Smith's violation of the Department's political non-interference policies. See Draft Report Vol. I at 107-37. Although Smith may wish to air his baseless and politically motivated grievances regarding the Constitutional importance of immunity, and otherwise provide feeble and transparent excuses for his plainly political motivations, that is not the purpose of a Special Counsel report under 28 C.F.R. § 600.8(c). A report must simply "explain[]" a Special Counsel's "prosecution or declination decisions" and nothing more. The Draft Report violates this core principle.

¶The issuance of such a report, in violation of the Constitution, the Transition Act, Presidential immunity, and DOJ's own regulations, would exacerbate the irreparable damage that Smith has already inflicted on DOJ's reputation for non-partisanship through his repeated violations of DOJ policies about election interference. As we noted one year ago in opposing Smith's failed attempt to obtain certiorari before judgment on Presidential immunity, which the Supreme Court rejected, Smith's actions "create[] the compelling appearance of a partisan motivation: To ensure that President Trump ... will face a months-long criminal trial at the height of his presidential campaign." Br. in Opp. to Pet'n for Writ of

¶January 6, 2025 Page 11

¶Certiorari Before Judgment in United States v. Trump, No. 23-624, at 21 (filed Dec. 20, 2024). Smith's nakedly partisan, election-interference motivation was obvious to commentators across the political spectrum. See id. (citing many sources). "[T]he best traditions of the U.S. Department of Justice ... call for prosecutors to avoid the appearance of election interference in the prosecution of political candidates." Id. at 23 (emphasis in original). "[F]ederal prosecutors ... may never make a decision regarding an investigation or prosecution, or select the timing of investigative steps or criminal charges, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party." Id (citing Justice Manual§ 9-27.260). Smith's latest illegal plan to launch yet another partisan attack against President Trump, De Oliveira, and Nauta will have the same injurious effect on DOJ' s reputation if not stopped in its tracks.

¶Further, preparing and releasing a report would be improper for the additional reason that Smith has relied on numerous legal theories that are unprecedented and incorrect as a matter of law. Many of those issues were the subject of ongoing litigation at the time Smith dismissed the cases. To name a few, these issues include the lack of statutory authority for Smith's appointment; Smith's reliance on official-acts allegations in both cases in violation of the Presidential immunity doctrine 17; Smith's unlawful theory under 18 U.S.C. § 1512(c)(2) in violation of Fischer v. United States, 603 U.S. 480 (2024); equal protection violations, based on selective and vindictive prosecution theories 18 ; the unprecedented and unlawful raid at Mar-a-Lago; and violations of the Presidential Records Act and NARA's longstanding practices under that Act.¹⁹¹⁹ ECF No. 327, United States v. Trump, No. 23 Cr. 80101 (S.D. Fla. Feb. 22, 2024). There were also numerous discovery disputes in both cases, including unresolved motions in the Southern District of Florida regarding Brady obligations, the scope of the prosecution team, and Intelligence Community holdings, which further call into question the reliability of Smith's theories.²⁰²⁰ ECF No. 262, United States v. Trump, No. 23 Cr. 80101 (S.D. Fla. Jan. 16, 2024). Smith's Draft Report presents a selective and inaccurate response to only some of these issues, and then proceeds as if his theories are well-founded and undisputed. Nothing could be further from the truth.

¶Finally, given the status of Smith and his team as the inauguration approaches, using additional taxpayer resources to prepare, review, and disseminate a report is not a legitimate use of taxpayer funds even ifthere were a valid appropriation here, which there is not. "The Special Counsel's office has spent tens of millions of dollars since November 2022, all drawn unconstitutionally from the Indefinite Appropriation." United States v. Trump, 2024 WL 3404555, at *46 (S.D. Fla. July 15, 2024). For the period preceding March 31, 2024, Smith's Office had used $20 million from a permanent indefinite appropriation and an additional $16 million from other unspecified "DOJ components. "²¹²¹ Special Counsel's Office, DOJ, Statements of Expenditures, https://www.justice.gov/sco-smith. Blanche Law PLLC 99 Wall Street, Suite 4460 New York, NY 10005 I (212) 716-1250 www.BlancheLaw.com I The costs of Smith's activities since March 2024 have not yet been released. It is clear, however, that the total figure

¶January 6, 2025 Page 12 will greatly exceed-by an extraordinarily wide margin-what all of this lawfare was actually worth to the public, the operations of the government, and the Country as a whole.

¶Smith's proposed plan for releasing a report is unlawful, undertaken in bad faith, and contrary to the public interest. Smith's conduct also raises grave concerns under Article II because it unlawfully encroaches on the Executive authority of the incoming Administration of President Trump to resolve the issues surrounding Smith's Office in accordance with President Trump's commanding national mandate from the voters. The time has come to put an end to this weaponization of the justice system and move forward constructively. No report should be prepared or released, and Smith should be removed, including for even suggesting that course of action given his obvious political motivations and desire to lawlessly undermine the transition. If you elect to proceed with Smith's plan, we again respectfully request (I) notice of such decision prior to any publication of the Draft Report, allowing us to take appropriate legal action, and (2) that this letter and Smith's meritless responses to the legal arguments set forth herein be incorporated into the Report.

¶Respectfully Submitted,

Isl Todd Blanche I Emil Bove Todd Blanche Emil Bove Blanche Law PLLC

Isl John Lauro I Gregorv Singer John Lauro Gregory Singer Lauro & Singer

¶Attorneys for President Donald J Trump

¶Cc: Jack Smith, Special Counsel

JP Cooney, Deputy Special Counsel (Via Email)

Blanche Law PLLC 99 Wall Street, Suite 4460 I New York, NY 10005 (212) 716-1250 I www.BlancheLaw.com

¶U.S. Department of Justice

Jack Smith Special Counsel

¶January 7, 2025