The Volokh Conspiracy
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Why Did Merrick Garland Want To Release Volume II Of The Smith Report To Ranking Members of Congress?
Today, Judge Cannon granted an emergency motion to block the release of Volume II of the Jack Smith report to ranking members of Congress. One lingering question I have had for some time is why Attorney General Garland wanted to transmit the report to congressional leaders. Judge Cannon explains that the government could not identify any reason:
With respect to the Department's assertion of congressional interest in Volume II, there has been no subpoena by Congress for review or release of Volume II. There is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case. There is, however, a recent letter by some of those same members urging Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira. Finally, although the Department refers generally to "legislative interest" concerning special counsels as a basis to deny Defendants' Emergency Motion as to Volume II [ECF No. 703 p. 3 n.2], the Department has identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now.
At most, the government implied that Attorney General Garland wanted to transmit the report before his term concluded:
According to the Department, this in camera disclosure to four members of Congress is necessary right now—before the conclusion of criminal proceedings—because Attorney General Garland has "limited time" left in his tenure as the head of the Department and wishes "to comply with the historical practice of all Special Counsel," and also because there is "legislative interest in information about Special Counsel investigations, in order to consider possible legislative reforms regarding the use of special counsels" [ECF No. 703 p. 3 n.2].11 These statements do not reflect well on the Department. There is no "historical practice" of providing Special Counsel reports to Congress, even on a limited basis, pending conclusion of criminal proceedings.
Indeed, there is no indication that Jack Smith himself wanted to transmit the report to Congress:
Special Counsel Smith left no indication in his report or in his transmittal letter to Attorney General Garland that he favored congressional release or review of his report prior to conclusion of criminal proceedings [ECF No. 693-1 p. 5]. . . . In short, the Department offers no valid justification for the purportedly urgent desire to release to members of Congress case information in an ongoing criminal proceeding.
When the government cannot provide a valid reason for their actions, they do not have. valid reason for their actions.
During the tax return litigation, various congressional committees made requests for Trump's tax returns to aid in the development of legisation. That justification was always a pretext. They wanted to release the tax returns as a way to harm Trump. Indeed, while there was unified Democratic control of government, was there any serious effort to actually pass legislation concerning the President's tax returns? One bill never even made it out of committee.
One wonders why Attorney General Garland was so intent on giving this report to Democratic members of Congress. Even if the document was reviewed in camera, nothing would prevent the members from talking about it to the press. Judge Cannon explains:
And if Volume II gets released in whole or in part to the public in contravention of those promises, the Department assures, then Defendants need not worry because this Court can "cure" any damage caused by crafting jury instructions in the future and/or dismissing the charges [ECF No. 703 pp. 5–6]. These assertions flounder on multiple levels and do nothing to detract from the obvious. Given the very strong public interest in this criminal proceeding and the absence of any enforceable limits on the proposed disclosure, there is certainly a reasonable likelihood that review by members of Congress as proposed will result in public dissemination of all or part of Volume II. See S.D. Fla. L.R. 77.2(a). That reasonable likelihood risks substantial prejudice to the due process rights of Defendants, who remain subject to the protective order in this case [ECF No. 27]. This Court lacks any means to enforce any proffered conditions of confidentiality, to the extent they even exist in memorialized form. And most fundamentally, the Department has offered no valid reason to engage in this gamble with the Defendants' rights. The bare wishes of one Attorney General with "limited time" in office to comply with a non-existent "historical practice" of releasing Special Counsel reports in the pendency of criminal proceedings is not a valid reason. And surely it does not override the obvious constitutional interests of Defendants in this action and this Court's duty to protect the integrity of this proceeding.
Moreover, since the report would be kept sealed, the press could not verify or "fact check" whatever those Democrats said. The ranking members would have the final say on the matter. If Garland found it so important to release the report, he could have dismissed the indictments against the two co-defendants. But they are intent on having Judge Cannon's decision vacated, so they cannot do that.
Judge Cannon concludes:
Prosecutors play a special role in our criminal justice system and are entrusted and expected to do justice. Berger v. United States, 295 U.S. 78, 88 (1935); Banks v. Dretke, 540 U.S. 668, 696 (2004); Robert H. Jackson, Attorney General of the United States, Speech to the U.S. Department of Justice, The Federal Prosecutor (Apr. 1, 1940), available at https://www.justice. gov/ag/speeches-attorney-general-robert-houghwout-jackson. The Department of Justice's position on Defendants' Emergency Motion as to Volume II has not been faithful to that obligation.
I realize it is popular to dismiss Judge Cannon as a partisan hack. But her efforts here have uncovered a glaring hole in the supposed neutrality of Merrick Garland's prosecution. Did Garland ever actually resign? Was he removed?
A common theme that we have seen, again and again, is that to save democratic norms from Trump, we must destroy democratic norms to stop Trump. Rinse and repeat.
