Editors at National Review Online assess the final legal activity emanating from the outgoing Biden administration.
Attorney General Merrick Garland and Judge Juan Merchan are taking their last opportunities for lawfare before Donald Trump takes office.
Early Tuesday morning, Garland released special counsel Jack Smith’s 146-page report on the 2020 election-interference investigation — the so-called January 6 (J6) case.
A second report, which pertains to the probe of Trump’s allegedly illegal retention of classified intelligence reports at Mar-a-Lago (and of his alleged obstruction of this investigation), has not been released. That’s because the Justice Department has dropped the case only against Trump, not against the two minor defendants alleged to be his accomplices. The matter is on appeal before the Eleventh Circuit, with the DOJ challenging Judge Aileen Cannon’s ruling that Smith’s special-counsel appointment violated the Constitution. Garland has orchestrated a scenario in which Trump’s incoming DOJ will surely drop the appeal, whereupon congressional Democrats can commence demanding the public release of Smith’s Volume II and hollering “cover-up” when it doesn’t materialize.
But that’s tomorrow’s lawfare. Let’s stick with the here and now.
There was no need for Smith to issue a final J6 report. The public is inundated with the appalling but unchanged facts of the Capitol riot, which the nation watched on television in real time, before it became the subject of both a congressional impeachment and the intensely covered House January 6 Committee proceedings. Over the next two years, Smith filed two extensive, narrative indictments in the case; litigated it up to the Supreme Court (on the decisive presidential immunity issue); and then, just three weeks before the election, publicly filed a 2,000-page proffer of his evidence.
Garland claims that the Justice Department’s regulations mandate that special counsels compose a final report and that, though the regs call for such reports to be “confidential,” attorneys general have customarily made them public. But under Garland, the DOJ has a history of claiming the regs are not enforceable and of picking and choosing which ones to apply.
