The Fight Over Jack Smith’s Secret Report

No sooner did Columbia University settle the Trump administration’s discrimination case, than one of its affiliates has upped the ante in the lawsuit over Special Counsel Jack Smith’s final, and still secret, report on the Mar-a-Lago case against the president. The Knight First Amendment Institute at Columbia has filed a petition with the riders of the 11th Appeals Circuit seeking the release of Mr. Smith’s report, government regulations be damned.These columns have already come out against releasing the report. We did that in February in an editorial called “Let Jack Smith’s Report Be Buried.” We acknowledged it’s not every day that a newspaper supports burying a controversial document absent some showing in respect of national security. Yet two private aides to Mr. Trump were being prosecuted, and Judge Aileen Cannon feared their rights could be compromised by the release of the report.The cases against them have since been dropped and the two individuals — Waltine Nauta and Carlos De Oliveira — pardoned by Mr. Trump early in his current term. Now, in a filing with the 11th Circuit, Columbia’s Knight Institute and another plaintiff, American Oversight, are asking the Circuit Riders (as our appeals judges used to be known) to issue a direct order to Judge Cannon to lift her decision that the Smith report remain under wraps.Our own concern remains, in part, the damage that could be done to the aides to Mr. Trump about whom the judge worried. That they have been cleared makes it even more important that they be protected from a report filled, one can guess, with evidence the special counsel lost the ability to air in a court where it could be properly litigated. No doubt the thought will annoy Columbia, whose brief seems to suggest that the report is supposed to be public.That, however, is not the case, as our A.R. Hoffman marks in his dispatch today. He quotes the executive director, Chioma Chukwu, of American Oversight, as saying in a statement that the “public has a right to know what Special Counsel Smith found.” Problem is, as Mr. Hoffman notes, the public doesn’t have a right to know what’s in the report. On the contrary, regulations covering the question leave the matter up to the attorney general.Plus, too, the regulations specify that it’s a “confidential report” that the Attorney General shall be provided. He or she — hello General Bondi — are left to their own devices in deciding whether and when, if ever, the confidential report should be made public. She “may determine that public release of these reports would be in the public interest.” the Knight Institute’s director, Jameel Jaffer, declares it should be made public “without further delay.”This editorial is not aimed at Mr. Smith. We oppose the pursuit of the prosecutor under the allegation that his work for the Department of Justice violated the Hatch Act. It strikes us as small beer. In the event, Mr. Smith is no longer employed by the government. The possibility of the release of a report for a case which was never tried before a jury, though, threatens such bedrock due process principles as, say, the presumption of innocence. One has only to look at Mr. Smith’s dossier on his January 6 case, which was released in January, to surmise the tone of this one. In that report Mr. Smith accused Mr. Trump of an “unprecedented criminal effort” and speculated that the “admissible evidence was sufficient to obtain and sustain a conviction.” That case, too, was dismissed without ever facing a jury. Columbia appears intent on convicting the president anew in the court of public opinion.

The Fight Over Jack Smith’s Secret Report

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