Reports that Matter

Report of Special Counsel Jack Smith, Volume One: The Election Case

Preparation And Release Of A Report Would Violate Existing Law

Section 29 of 33

Preparation And Release Of A Report Would Violate Existing Law

Preparation and public release of a report by Smith would violate the Constitution and existing law, including the Appropriations and Appointments Clauses, the Special Counsel Regulations, the Presidential Transition Act, and the Presidential immunity doctrine. Collectively, these considerations distinguish the circumstances surrounding the release of reports by prior Special Counsels. Here, release of an unlawful report would not "comply with applicable legal restrictions" or "be in the public interest."28 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); see also id. § 600.7(a) ("A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice."). Therefore, you must countermand Smith's proposed course of action, id. § 600.7(b ), and he should be removed for "dereliction of duty" and "good cause,"§ 600. 7(d).

Smith was not validly appointed, and Congress did not provide funding for his improper mission. No statute authorized you to deploy a private attorney against President Trump and others, and Smith functioned as a principal officer acting without the necessary Senate confirmation. In addition, the DOJ permanent indefinite appropriation Smith relied upon was-and still is-inapplicable. The only judge to have examined the particulars of Smith's appointment reached these conclusions in an extremely thorough and well-reasoned opinion. See generally United States v. Trump, 2024 WL 3404555, at *46 (S.D. Fla. July 15, 2024). On appeal, Smith's prosecutors failed to identify any meritorious reason for questioning Judge Cannon's treatment of these issues, and then abandoned the appeal as to President Trump. Therefore, Smith lacks •authority to issue a report regarding his activities while masquerading as a prosecutor, and his Office lacks authority to expend any public funds in furtherance of preparing or issuing such a report. Indeed, because Smith abandoned the 11th Circuit appeal as to President Trump, Judge Cannon's decision is a final judgment with issue-preclusive effect on these issues. See, e.g., Bravo­ Fernandez v. United States, 580 U.S. 5, 7-8 (2016) (cleaned up) ("In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."); Bobby v. Bies, 556 U.S. 825, 834 (2009) (same).

Preparation and release of a report would also be improper under the Special Counsel Regulations. Those Regulations only call for "Closing documentation," in the form of a "confidential report," to be prepared "[a]t the conclusion of the Special Counsel's work."28 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) (emphasis added). In light of the violations of the Appointments Clause and the Appropriations Clause, Smith has no lawful "work" to conclude. Moreover, by Smith's own repeated admission, Smith has not concluded his mission.

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Rather, Presidential immunity based on the national mandate ansmg from President Trump's overwhelming victory in the election has made it impossible for Smith to proceed, and rightly so.

Smith's representations in the District of Columbia regarding his dismissed prosecution of President Trump reinforce these points and make clear that no "Closing documentation" is warranted.28 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). Smith wrongly relied on the claim that Presidential immunity is "temporary," which is not the case, to ask that the charges against President Trump only be dismissed "without prejudice."2 The plain implication of Smith's position, which Judge Chutkan adopted, is that he does not believe his work targeting President Trump has reached its "conclusion."28 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). Thus, taking a contrary position in order to justify preparation of one last long-winded, inaccurate, and unlawful smear of the President-elect and others would violate the Special Counsel Regulations.

Public release of a report by Smith would also disrupt the ongoing transition process and violate the Presidential Transition Act. "[T]he orderly transfer of the executive power is one of the most important public objectives in a democratic society. The transition period insures that the candidate will be able to perform effectively the important functions of his or her new office as expeditiously as possible." Memorandum from Randolph D. Moss, Assistant Attorney General, OLC, Definition of "Candidate" Under 18 USC. §207(;), 2000 WL 33716979, at *4 (Nov. 6, 2000) (cleaned up). "One of the top priorities of any presidential administration is to protect the country from foreign and domestic threats. While a challenge at all times, the country is especially vulnerable during the time of presidential transitions ...."3 An indictment is an allegation, not a verdict; a person accused of a crime is presumed innocent until proven guilty beyond a reasonable doubt. The Office was prepared to present the evidence of Mr. Trump's alleged crimes in a public adversarial trial and to accept any verdicts rendered by a jury of his peers. As explained below, the Office commenced prosecution of Mr. Trump in the Election Case under both the original and superseding indictments because it concluded that the admissible evidence would be sufficient to obtain and sustain a conviction. See Justice Manual § 9-27 .220 and infra at Section III. Thus, the transition process is "an integral part of the presidential administration," in the "national interest," and part of President Trump's "public function," as he prepares to govern. Memorandum from Randolph D. Moss, Assistant Attorney General, OLC, Reimbursing Transition-Related Expenses Incurred Before The Administrator Of General Services Ascertained Who Were The Apparent Successfitl Candidates For The Office OfPresident And Vice President, 2001 WL 34058234, at *3 (Jan. 17, 2001).

Congress passed the Presidential Transition Act to protect these critical functions. The purpose of the Act is "to promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President."3 An indictment is an allegation, not a verdict; a person accused of a crime is presumed innocent until proven guilty beyond a reasonable doubt. The Office was prepared to present the evidence of Mr. Trump's alleged crimes in a public adversarial trial and to accept any verdicts rendered by a jury of his peers. As explained below, the Office commenced prosecution of Mr. Trump in the Election Case under both the original and superseding indictments because it concluded that the admissible evidence would be sufficient to obtain and sustain a conviction. See Justice Manual § 9-27 .220 and infra at Section III. U.S.C. § 102 note, § 2. "Any disruption" of the transition "could produce results detrimental to the safety and well-being of the United States and its people." Id Consequently, under the Act, "all officers of the Government"-including the Attorney General and, according to his claims, Smith-are required to "conduct the affairs of the Government for which they exercise responsibility and authority" in a manner that "promote[s] orderly transitions in the office of President." Id. This includes, inter alia, "tak[ing] appropriate lawful steps to avoid or minimize disruptions that might be occasioned by the transfer of the executive power." Id

Creating and releasing a prejudicial report to the public would violate these commands by giving rise to a media storm of false and unfair criticism that President Trump would be required to address while preparing to assume his Article II responsibilities. Equally problematic and inappropriate are the draft's

2 ECF No. 281 at 6, United States v. Trump, No. 23 Cr.257 After the D.C. Circuit issued its opinion affirming the district court, Mr. Trump filed a motion in the Supreme Court to stay the Circuit's issuance of its mandate until he could file, and the Supreme Court could resolve, a petition for certiorari that he intended to file in the Supreme Court. See Trump v. United States, No. 23A 745, Application for a Stay of the D.C. Circuit's Mandate Pending the Filing of a Petition for Writ of Certiorari (U.S. Feb. 12, 2024). In response to that motion, the Office again pointed to the significant public interest in a prompt resolution of the case, and argued that the Supreme Court should either deny the stay or, as an alternative manner of moving the case promptly, treat Mr. Trump's motion as a petition for certiorari, grant the petition, and set the case for expedited briefing and argument. See Trump, No. 23A 745, Resp. in Opp'n to Application for a Stay of the Mandate of the United States Court of Appeals for the D.C. Circuit (U.S. Feb. 14, 2024). The Supreme Court adopted the Office's alternative proposal and set an argument and briefing schedule to complete the litigation in the October Term, which ended on July 1, 2024. See Trump, No. 23-939, Order Granting Petition (U.S. Feb. 28, 2024). Briefing was completed by April 15, 2024, the Supreme Court held oral argument on April 25, 2024, and the Supreme Court issued its immunity opinion remanding for further proceedings on July I, 2024. See Trump, 603 U.S. at 642. (D.D.C. Nov. 25, 2024).

3Center for Presidential Transition, Presidential Transitions are a Perilous Moment for National Security (Aug. 16, 2023 ), https ://presidential transi tion.org/reports-publications/presidential-transi tions-are-a­ perilous-moment-for-national-security.

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Page 5 baseless attacks on other anticipated members of President Trump's incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings, and Smith's pathetically transparent tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have claimed are paramount.

A one-sided, improper report by Smith, particularly if publicly released, would also violate the

Presidential immunity principles that Smith has conceded foreclose him from proceeding against President

Trump. Indeed, footnote 1 of "Volume 1" of the Draft Report concedes that Smith has brazenly included "conduct for which the Supreme Court later held [President] Trump to be immune from prosecution," and subsequently further highlights the incredible hubris that has clouded the judgment of Smith and his staff from the outset by falsely claiming that the Supreme Court's decision is ambiguous with respect to holdings and reasoning that Smith simply does not like. Based on guidance from OLC-which Smith's staff subsequently informed us that the Office improperly failed to document in any way, in violation of, inter alia, DOJ policy regarding the handling of exculpatory information-Smith has acknowledged that Presidential immunity is "categorical," and that it applies while President Trump is the President-elect prior to his inauguration.4 ECF No. l at 110; ECF No. 226 at 1 11; see ECF No. 252 at 3. A public report by Smith would unnecessarily and unjustly add to the inappropriate "peculiar public opprobrium" that has resulted from Smith's unlawful activities thus far. Trump v. United States, 603 U.S. 593, 613 (2024). OLC explained previously that such "public stigma and opprobrium" could "compromise the President's ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs." Memorandum from Randolph D. Moss, Assistant Attorney General, OLC, A Sitting President's Amenability to Indictment and Criminal Prosecution, 2000 WL 33711291, at *19 (Oct. 16, 2000). "[T]he stigma arising ... from the need to respond to such charges through the judicial process would seriously interfere with [the President's] ability to carry out his constitutionally assigned functions." Id. at *22. The release of a report would also pose an unconstitutional risk of diverting President Trump's "personal time and energy, and [would] inevitably entail a considerable if not overwhelming degree of mental preoccupation." Id. at *25 (emphasis in original). A "single prosecutor" such as Smith should not, and must not, be afforded "the practical power to interfere with the ability of a popularly elected President to carry out his constitutional functions." Id. at *19. "The Framers' design of the Presidency did not envision such counterproductive burdens on the vigor and energy of the Executive." Trump, 603 U.S. at 614 (cleaned up).

4ECF No. 281 at 6, United States v. Trump, No. 23 Cr.257 After the D.C. Circuit issued its opinion affirming the district court, Mr. Trump filed a motion in the Supreme Court to stay the Circuit's issuance of its mandate until he could file, and the Supreme Court could resolve, a petition for certiorari that he intended to file in the Supreme Court. See Trump v. United States, No. 23A 745, Application for a Stay of the D.C. Circuit's Mandate Pending the Filing of a Petition for Writ of Certiorari (U.S. Feb. 12, 2024). In response to that motion, the Office again pointed to the significant public interest in a prompt resolution of the case, and argued that the Supreme Court should either deny the stay or, as an alternative manner of moving the case promptly, treat Mr. Trump's motion as a petition for certiorari, grant the petition, and set the case for expedited briefing and argument. See Trump, No. 23A 745, Resp. in Opp'n to Application for a Stay of the Mandate of the United States Court of Appeals for the D.C. Circuit (U.S. Feb. 14, 2024). The Supreme Court adopted the Office's alternative proposal and set an argument and briefing schedule to complete the litigation in the October Term, which ended on July 1, 2024. See Trump, No. 23-939, Order Granting Petition (U.S. Feb. 28, 2024). Briefing was completed by April 15, 2024, the Supreme Court held oral argument on April 25, 2024, and the Supreme Court issued its immunity opinion remanding for further proceedings on July I, 2024. See Trump, 603 U.S. at 642. (D.D.C. Nov. 25, 2024) ("[T]he Department's position is that the Constitution requires that this case be dismissed before the defendant is inaugurated.").

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