Justice Department Moves to Block Release of Jack Smith’s Mar-a-Lago Findings, Deepening Transparency Fight

Washington — The Justice Department has taken the extraordinary position that a significant portion of Special Counsel Jack Smith’s final report — detailing the investigation into Donald J. Trump’s handling of classified documents at Mar-a-Lago — should never be released to the public, escalating a legal and political confrontation over transparency, accountability and the independence of federal law enforcement.

In a filing submitted to U.S. District Judge Aileen M. Cannon in late December, the department argued that “Volume Two” of Mr. Smith’s report constitutes internal deliberative material protected by executive privilege and should remain permanently confined within the Department of Justice. The filing aligned the government’s position with arguments advanced by Mr. Trump and his former aides, who have sought to prevent disclosure of any findings related to the dismissed classified documents case.

The move has drawn sharp criticism from Democratic lawmakers, former prosecutors and constitutional scholars, who say it marks a dramatic break from precedent and risks erasing from public view one of the most consequential federal investigations in modern history.

A Report Half-Seen

Mr. Smith’s investigation was divided into two major components: the effort to overturn the 2020 election and the separate inquiry into Mr. Trump’s retention of classified national security documents after leaving office. While Mr. Smith was permitted to testify before Congress this month about the January 6 investigation, he was barred from addressing the Mar-a-Lago case.

The restriction stemmed from Judge Cannon’s decision to keep all filings related to that case under seal, despite having dismissed it more than a year earlier. Though appellate judges on the U.S. Court of Appeals for the 11th Circuit recently pressed Judge Cannon to clarify her position, she established a new briefing schedule that effectively delayed any resolution well into 2026.

During Mr. Smith’s congressional testimony, Justice Department lawyers warned that he could face prosecution if he disclosed any nonpublic information connected to the Mar-a-Lago investigation — while declining to specify what, precisely, he was prohibited from discussing. Legal experts described the guidance as unusually vague and potentially chilling.

“There has never been a situation like this,” said Harry Litman, a former U.S. attorney and the host of the Talking Feds podcast. “A special counsel is being told: testify, but if you cross an invisible line, you could be prosecuted. That’s unprecedented.”

DOJ Embraces Trump’s Argument

In its filing, the Justice Department went further, adopting language that echoed Judge Cannon’s earlier ruling that Mr. Smith’s appointment was unlawful — a view rejected by most federal courts and legal scholars. The department asserted that the special counsel’s work was “marked by illegality and impropriety” and that releasing Volume Two would undermine executive branch confidentiality.

The filing stated that Attorney General Pam Bondi had determined the report was a “privileged internal deliberative communication” and therefore exempt from disclosure.

For critics, the most striking aspect was not simply the claim of privilege, but the alignment of the Justice Department with the legal interests of Mr. Trump, a former defendant in the case.

“The prosecutors have become the defenders,” said Representative Jamie Raskin of Maryland, the top Democrat on the House Judiciary Committee. “That should alarm anyone who cares about the rule of law.”

Mr. Raskin and other Democrats have signaled their intent to recall Mr. Smith for additional testimony should court restrictions be lifted, invoking minority rights under House rules to compel witnesses.

Breaking With History

Previous special counsel reports — including those by Robert Mueller, Ken Starr and Lawrence Walsh — were released at least in substantial form, even when politically sensitive. While redactions were common, wholesale suppression was not.

The Justice Department’s reliance on the deliberative process privilege has drawn skepticism. The privilege is traditionally considered qualified, not absolute, and can be overcome by compelling public interest — especially when alleged criminal conduct by a president is involved.

“What is the government’s interest here?” asked a former senior Justice Department official, speaking on condition of anonymity. “Avoiding embarrassment is not a legitimate justification for secrecy.”

Legal analysts also note a procedural dilemma: if Judge Cannon accepts the department’s argument, it is unclear who would have standing to appeal. With prosecutors and defendants in agreement, there may be no adversarial party left to challenge the ruling — a scenario known as a collusive outcome, rare in criminal law.

Broader Implications

The fight over Volume Two is unfolding against a backdrop of broader transparency disputes. The administration has faced criticism for its limited release of records related to Jeffrey Epstein and other politically sensitive matters, prompting accusations that promises of openness are being selectively applied.

To supporters of Mr. Trump, the Justice Department’s actions represent a correction of what they view as politicized prosecutions. To opponents, they signal the institutionalization of impunity.

“This isn’t just about Donald Trump,” Mr. Litman said. “It’s about whether the public ever gets to know what its government uncovered when it investigated a sitting or former president.”

The stakes extend beyond any single report. Constitutional scholars warn that the legal framework governing oversight and accountability assumes good faith among institutions — an assumption strained when executive power, prosecutors and sympathetic courts move in concert.

“The Constitution was not designed for a captured Justice Department,” said one law professor who studies separation of powers. “When the enforcement mechanism aligns with the subject of investigation, the system has no easy failsafe.”

Waiting for History

For now, Volume Two remains sealed, its contents known only to a shrinking circle of officials. Whether it emerges next year, in a future administration, or decades from now remains uncertain.

But many legal observers believe its eventual release is inevitable.

“History has a way of surfacing buried truths,” Mr. Litman said. “The question is how much damage is done before that happens.”

As the courts deliberate and Congress weighs its options, the episode has become a defining test of whether American institutions can withstand a moment when the line between justice and power appears increasingly blurred.