The United States Department of Justice joined forces with the two remaining co-defendants in the Mar-a-Lago documents case to advise the judge overseeing the case to proceed cautiously with the second volume of former special counsel Jack Smith’s final report on his investigations into President Donald Trump.
In a joint status report filed Friday, attorneys for the DOJ, Trump valet Waltine Nauta, and Mar-a-Lago property manager Carlos De Oliveira took opposing positions on the second volume of the report, but shared some key positions on its potential release.
“The United States understands and appreciates the arguments made by Waltine Nauta and Carlos De Oliveira regarding the prejudice they would suffer if Volume II were to be released,” according to the paperwork. “The United States, Waltine Nauta, and Carlos De Oliveira also agree that under no circumstances should the Court order the release of Volume II of Jack Smith’s confidential Final Report.”
There is currently a court order prohibiting the DOJ and US Attorney General from releasing the second volume outside of the nation’s top law enforcement agency. According to the filing, the court order can and should remain in effect – at least for now.
However, if the order is lifted, the Fort Pierce-based court should give the co-defendants a final parting gift, according to all parties involved.
“The United States, Waltine Nauta, and Carlos De Oliveira further agree that if the Court lifts its Injunction Order, the Court should require the Department of Justice to provide written notice to counsel for Waltine Nauta and counsel for Carlos De Oliveira sixty days prior to releasing a redacted version of Volume II outside the Department of Justice,” according to the filing.
“This would allow the defendants to seek appropriate relief from this Court, if the Attorney General ever expresses an intention to release Volume II outside the Department of Justice.”
The drama surrounding the release of the second volume consumed several docket entries during the Biden administration’s final days.
The first volume of Smith’s report, published in January, is about the Jan. 6 attack on the US Capitol and Trump and his allies’ efforts to overturn the 2020 election results.
That volume contains only two passing mentions of the Mar-a-Lago case, neither of which implicates Nauta nor De Oliveira. The second volume addresses allegations that Trump and others mishandled classified documents.
U.S. District Judge Aileen Cannon, for her part, strongly opposed lame duck attempts to make the second volume public.
Now, the remaining interested parties are making suggestions in case the Trump-appointed judge changes his mind.
According to the DOJ, the second volume of the report is essentially their property, and will remain so for the foreseeable future, because Nauta and De Oliveira are no longer being prosecuted.
From the filing, in detail:
In the event the Court is inclined to lift the Injunction Order, the United States submits the decision to release Volume II to outside the Department of Justice should rest with the sound discretion of the Attorney General of the United States. The United States recognizes that when the Court entered its Injunction Order, Waltine Nauta and Carlos De Oliveira still faced the prospect of criminal trials on the charges contained in the Superseding Indictment. The Court’s Injunction Order was necessary and appropriate. At this juncture, the United States Attorney’s Office for the Southern District of Florida does not intend to revive the charges brought by Special Counsel Smith, and the Attorney General of the United States has not expressed an intent to release Volume II outside the Department of Justice. If the Court is inclined to lift the Injunction Order, it is the Attorney General’s prerogative to determine whether the release of Volume II “would be in the public interest[.]”
To that end, the DOJ believes the court should stay out of the matter in the future. The government even advises Cannon to avoid conducting “an in camera review of the grand jury materials related to this prosecution.”
While such a review is permissible under federal rules, it would “be premature,” according to the DOJ, because neither the attorney general nor “any court of competent jurisdiction” has ordered it.
“Moreover, this Court has held that Jack Smith’s appointment violated the Appointments Clause of the United States Constitution, and therefore his investigation was invalid,” the paperwork states. “Finaly [sic], the Department of Justice, not the Court, is responsible for redacting any grand jury material in Volume II.”
Nauta and De Oliveira do not differ significantly from the DOJ, and they largely agree with the government’s arguments. However, the duo departs from the agency slightly by reminding Cannon that they are still theoretically in legal jeopardy.
“They appreciate and do not dispute that the Attorney General has given no indication that she intends to release the Report,” says one of the defendants.
“However, the statute of limitations has not yet expired in this matter, and Mr. Nauta and Mr. De Oliveira respectfully request that the Court maintain its supervision over this exceptionally complex case and continue to enjoin the release of the Report, and that doing so would not be a usurpation of the Attorney General’s authority to release or withhold the Report under DOJ’s Special Counsel regulations.”
Furthermore, Nauta and De Oliveira claim that what is stated in the second volume of the report is unlikely to benefit them.
“To start, permitting the release of the one-sided Report would also amount to an unjust use of court-controlled grand jury processes to effect further disparagement of Mr. Nauta and Mr. De Oliveira,” according to the complaint. “They endured approximately a year-and-a-half of rampant pretrial publicity and vilification.”
The pair’s attorneys, however, insist that reputational issues extend beyond public perceptions. Rather, the release of the second volume of the report would further harm them by removing their due process rights.
“The Report should be relegated to the dustbin of history, where it belongs, in order to prevent further unjust prejudice to Mr. Nauta and Mr. De Oliveira,” the lawsuit states.
To that end, the co-defendants request that Cannon retain jurisdiction over the matter and the report in order to deny Freedom of Information Act requests for the release of the second volume and, they say, on the off chance that “jeopardy arguably remains for the defendants in this highly publicized and political case.”
