Attorneys for President-elect Donald Trump asked Attorney General Merrick Garland to remove special counsel Jack Smith from his post and either decline to release Smith’s upcoming report detailing his investigations into the president-elect or hand over the matter to Trump’s incoming administration, according to a letter released Monday.
The letter, addressed to Garland and a top career official at the Justice Department, alleged the special counsel did not have the legal authority to submit a final report summarizing his dual investigations into Trump and urged the attorney general to “put an end to this weaponization of the justice system and move forward constructively.” The correspondence was written in part by defense attorneys Todd Blanche and Emile Bove, Trump’s picks to serve as deputy attorney general and principal deputy attorney general in his upcoming administration.
Smith led two now-defunct investigations into the president-elect, one tied to his alleged efforts to resist the peaceful transfer of power and overturn the results of the 2020 presidential election and another based on accusations that Trump unlawfully retained sensitive government records after he left office in 2021. The probes resulted in criminal indictments against Trump, which have since been dismissed. Trump initially pleaded not guilty and denied all wrongdoing.
The classified documents case was dismissed by a federal judge in Florida who ruled in July 2024 that Garland unlawfully appointed Smith, a finding the Justice Department disputed and was appealing in the runup to the presidential election. The 2020 election-related charges against Trump were dismissed after Trump was re-elected. The special counsel wrote that Justice Department policy forbids the prosecution of a sitting president.
Federal regulations dictate that upon the completion of any special counsel probe, the investigative team is to submit a report detailing its findings to the attorney general for review. Garland has previously pledged to publicly release all special counsel reports completed under his tenure and so far kept to that promise, including after a separate special counsel, Robert Hur, submitted his findings about President Biden’s handling of classified records. Mr. Biden’s legal team raised objections to the attorney general over characterizations in that report, which were rebuffed by Justice Department officials when the complete findings — including characterizations of Mr. Biden’s age — were publicly released.
Smith has been working on a final report to be completed before Trump’s inauguration, sources familiar with the matter confirmed to CBS News. Following its submission, the special counsel is expected to resign as other independent prosecutors have done, the sources said.
In Monday’s letter, Trump’s attorneys revealed that they reviewed a draft of Smith’s report over the last few days at the special counsel’s office and raised objections, arguing the preparation of a report would violate federal law related to official appointments and presidential transitions.
“Because Smith has proposed an unlawful course of action, you must countermand his plan and remove him promptly. If Smith is not removed, then the handling of his report should be deferred to President Trump’s incoming attorney general, consistent with the expressed will of the People,” Trump’s attorneys wrote. They also said they would seek legal recourse should Garland deny their requests.
Should Garland opt to hand over the report to Trump’s incoming Justice Department for consideration, as the letter suggested, much of the decision-making could fall to the president-elect’s current defense team who will hold key leadership positions within the department, and his selection for attorney general, former Florida Attorney General Pam Bondi.
The Justice Department declined to comment.
The letter to the attorney general was included as an exhibit in a simultaneous effort by Trump’s former codefendants in the classified documents case to ask a court to intervene and stop the release of the special counsel’s report.
Trump aide Walt Nauta and former Mar-a-Lago employee Carlos de Oliveira asked Judge Aileen Cannon to stop the release of the report, arguing they would “suffer harm as civilian casualties” to the case. The pair were charged alongside Trump as part of an alleged effort to obstruct the classified documents probe. Both men pleaded not guilty and in Monday’s letter accused Smith of improper motivations.
While Smith dropped his appeal of the case against Trump citing Justice Department policy, he opted to keep going with the appeal in Nauta and de Oliveira’s case in an effort to reverse the legal precedent created by Cannon’s ruling that Smith was unlawfully appointed.
On Monday, attorneys for the men turned to Cannon, urging her to step in and stop the special counsel from completing his report. They alleged such a move would be improper after the judge had previously dismissed the case. They also contended any public release could affect the ongoing appeal and infringe on the defendants’ rights.
The Final Report is meant to serve as a Government verdict against the Defendants contrary to all criminal justice norms and constitutional guideposts,” the attorneys wrote. “The filing of such a report, by an unauthorized person, is clearly improper in this context and will cause grave harm given the pendency of criminal proceedings, now on appeal, at counsel Smith’s own insistence.”
A spokesperson for Smith declined to comment.
The news comes days after a top lieutenant to the special counsel, Jay Bratt, retired from the Justice Department. Bratt, a 34-year federal prosecutor and former head of the Justice Department’s counterintelligence section, played a key role in the origins of the classified documents probe and went on to prosecute the case against Trump as part of Smith’s team.
While no date has been publicly announced for the release of Smith’s report, the defense attorneys asked Cannon to issue a ruling by Friday.
Aaron Navarro
contributed to this report.
