Some Brief Reflections on Jack Smith's Report and Todd Blanche's Objections
Special Counsel Jack Smith's report on the aborted prosecution of Donald Trump is noteworthy mostly for how noteworthy it isn't. I agree completely with what Professor Marty Lederman wrote in a thread on BlueSky: "The vast majority of what's in the report is not only uncontested but also was well-known to everyone, at least in broad detail, in February 2021. And it ought to be beyond controversy that a person who acted as Trump did is manifestly unsuited to hold any office, let alone the presidency."
The recitation of facts takes up much less than half of the report. The report points to the overwhelming evidence that Trump knew that his claims of election fraud were false and that therefore he acted intentionally to subvert the election result. The bulk of the report addresses two issues: (a) it painstakingly explains why Trump's conduct was criminal and prosecutable, even after the Supreme Court's immunity ruling in Trump v. United States; and (b) it justifies the conduct of the Special Counsel under Department of Justice policies, rebutting Trump's baseless allegations that the prosecution was politically motivated.
Appended to the report is an Addendum consisting of a 12-page letter from Todd Blanche, Trump's lawyer and nominee to be Deputy Attorney General, and a 2-page reply thereto from Smith. As Smith's brief reply notes, Blanche's letter does not specifically deny any of the factual statements in the body of the report, instead resorting to Trumpian hyperbole and falsely claiming that the investigation and aborted prosecution resulted in Trump's "complete exoneration." Blanche also repeats--and cites no evidence for--the claim that Smith was motivated by partisanship. He also complains that his access to the report before it was delivered to Attorney General Garland was limited in that he was permitted to read it but only under some restrictions, even though, as Smith notes in the reply, Smith had no legal obligation to provide Trump with any version of the report before sending it on to the AG.
Perhaps the most interesting aspect of the Blanche letter is his claim that Smith's appointment was unlawful and that therefore the report should not be issued. As readers may recall, in the documents case, Judge Cannon accepted this contention and accordingly dismissed the prosecution. Because that case includes two co-defendants, the issue remains pending on appeal before the Eleventh Circuit. However, at present, there is no ruling invalidating Smith's appointment in the election subversion case. Thus, it is quite a stretch for Blanche to claim that Smith is barred from transmitting even volume 1 of his report (on the election subversion case) to Garland or that Garland is barred from releasing the report to the public based on the claim of unlawful appointment.
Meanwhile, it's notable that Smith's cover letter to Garland makes clear that some of the recent back-and-forth in front of Judge Cannon was over essentially nothing. Smith wrote in that letter (dated January 7, 2025), that volume 2 of the report (on the documents case) should not be released to the public while the prosecution against the two co-defendants remains pending. Thus, the only matter of real significance before Judge Cannon was whether to enjoin volume 1. She initially did so despite the fact that it was plainly beyond her jurisdiction. (The claim that the two reports are somehow linked is nonsense. There's nothing in volume 1 that could prejudice the co-defendants in the documents case.) So the only issue that Judge Cannon had any authority to decide--whether to enjoin release of volume 2--was essentially uncontested.
To be sure, there remains the question whether Judge Cannon can continue to enjoin the release of volume 2 even to leaders in Congress. She will apparently decide that question soon--although it's not clear that she even has jurisdiction to do so, given that the case is on appeal already. With Trump's inauguration just five days away, it's also not clear whether the Eleventh Circuit and/or SCOTUS will have time to vacate an injunction against release to congressional leadership. It should be assumed that if there is an injunction against such release still pending once Trump has become President, his appointees to the DOJ will bury the report. But again, all that will be prevented is its being shared with congressional leadership. Given Smith's acknowledgment that volume 2 should not be made public during the pendency of the charges against the co-defendants, it was never going to be released to the public.
It's worth noting that protection of the right to a fair trial of the co-defendants is a wholly different reason for withholding the report from the claim by Blanche that Smith can't prepare a report at all because his appointment was unlawful. That claim strikes me as wrong--even if Smith's appointment was unlawful. The core reason Judge Cannon gave for invalidating Smith's appointment was that it violated the Appointments Clause in conjunction with her reading of various federal statutes as failing to confer appointment authority on the Attorney General. I think she's wrong about that, but suppose she's right. Even so, it's hardly clear that that would preclude release of Smith's report.
Suppose Smith really was a rogue, a private citizen masquerading as a federal prosecutor. That would be a reason to disallow him to pursue a prosecution, but why would it disallow him to write a report on his activities as such? Perhaps the AG would be precluded from releasing the private citizen's report (although even that's not obvious), but to enjoin a private citizen from communicating to the public is to issue a prior restraint, which is nearly impossible to justify under the First Amendment.
Blanche's letter describes Smith as an "out-of-control private citizen unconstitutionally posing as a prosecutor." As a side note, that's oxymoronic. If Smith really is only a private citizen, he could act unlawfully but not unconstitutionally, except by enslaving other people, because, with the exception of the Thirteenth Amendment, the Constitution doesn't apply to private citizens. But that aside, if Blanche is correct that Smith is a private citizen, Smith has the right of free speech--including to disseminate a report free of any prior restraint. If the report contains falsehoods that harm Trump's reputation, Trump could sue for defamation, but he can't make the sort of extraordinary showing necessary to obtain a prior restraint.
To be sure, Garland, not Smith, made the decision to release the report, but that's because Blanche's claim that Smith is a mere private citizen posing as a prosecutor has not been accepted by a court in the election subversion case. If it had been, and Smith in his capacity as private citizen, wanted to release his report, Trump and Blanche couldn't stop him from doing so.