(DCNF)—Less than two weeks before President-elect Donald Trump takes the oath of office, prosecutors refuse to back down from using dead cases to attack him.
In New York, Judge Juan Merchan scheduled Trump’s sentencing for Friday — a decision Trump is urging the Supreme Court to block. Meanwhile, the Department of Justice (DOJ) is pushing to release special counsel Jack Smith’s final report following Judge Aileen Cannon’s ruling blocking its release.
“There is no question that Merrick Garland is going to release Special Counsel Jack Smith’s final report, quite possibly for the same reason that Judge Juan Merchan is going to sentence President-Elect Trump this Friday — to get in a last-minute dig just before Trump’s inauguration,” John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government, told the Daily Caller News Foundation.
Malcolm noted it remains an “open question” whether Smith has authority to write the report after Cannon found his appointment unconstitutional.
The DOJ indicated in a filing Wednesday that the first part of Smith’s report concerning the 2020 election investigation would be released, noting it is “in furtherance of the public interest in informing a co-equal branch and the public regarding this significant matter.”
Smith already handed off his entire report, which consists of two volumes, to Attorney General Merrick Garland, according to a filing at the Eleventh Circuit Court of Appeals. Garland determined he would not release volume two of the report, which focuses on Trump’s classified documents case, while proceedings for Trump’s co-defendants are ongoing.
Both of Smith’s cases against Trump were dismissed after he won the election, though the DOJ did not drop charges against Trump’s co-defendants in the classified documents case.
Cannon blocked the DOJ on Tuesday from releasing Smith’s report until the Eleventh Circuit issues a ruling.
Trump, who is no longer directly a party to the case, filed an amicus brief Wednesday arguing that Garland “cannot issue a report of an unconstitutionally appointed and funded Special Counsel.” Releasing the final report now would also violate the Presidential Transition Act, his attorneys wrote in the brief.
“In sum, public release of the Final Report threatens the same, if not more, stigma and opprobrium as an indictment and, thus, represents an equal, if not greater, infringement on the exercise of the executive power, and completely disregards Congress’s intent in the Presidential Transition Act,” the brief explains.
Former federal prosecutor Andrew Cherkasky told the DCNF that “transparency is vital, but it must not come at the cost of justice or constitutional order.”
“In light of the unique national interests at stake, including the ongoing presidential transition and the need to restore public confidence, the Attorney General should exercise prudence and defer any release until a proper review is conducted by the incoming administration,” he told the DCNF.
Cherkasky said he is also concerned about “the emergency nature of rushing a complex and novel legal issue.”
“There is no pulling back the report once it is released, and to do so before the court, and appellate courts are able to weigh in with due time and consideration is shortsighted and obviously political given the few days AG Garland has before he leaves his post,” he said. ‘This is lawfare of the highest order in cases that have been dismissed. It is outrageous to think Smith didn’t seek to release this report while the cases were pending (prosecutors rarely would release such because it gives away their strategy).”
🚨🚨🚨Fromer AG Meese & Professor Calabresi file amicus in Trump's petition to Supreme Court for Stay. Denying stay just got that much harder.
— Margot Cleveland (@ProfMJCleveland) January 9, 2025
‘One County Prosecutor’
If Trump wants to avoid a sentencing hearing in New York set for 9:30 a.m. EST on Friday, the Supreme Court will likely need to rule on Thursday, after his other effort to block the hearing was shot down by a judge on New York’s highest court.
Manhattan District Attorney Alvin Bragg urged the justices Thursday to let the hearing proceed, writing there is “no basis” for taking the “extraordinary step of intervening in a pending state criminal trial.”
“It is axiomatic that there is only one President at a time,” Bragg’s brief states. “Non employees of the government do not exercise any official function that would be impaired by the conclusion of a criminal case against a private citizen for private conduct.”
Former Attorney General Edwin Meese III and Northwestern law professor Steven G. Calabresi wrote in an amicus brief that it is “intolerable that one county prosecutor in one State could besmirch a President’s reputation and reduce his effectiveness in carrying out his extensive duties at this time.”
“Today, moreover, there are fifty states with roughly 2,300 county prosecutors, some of them quite partisan,” they wrote. “This Court should not allow such a prosecutor to impair the President’s or congressionally certified President-Elect’s ability to perform his
duties.”
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