Special counsel Jack Smith has resigned

By Dan Berman, Katelyn Polantz and Tierney Sneed, CNN

(CNN) — Special counsel Jack Smith has resigned from the Justice Department effective Friday, according to a court filing.

The filing comes amid a legal fight to stop Attorney General Merrick Garland from releasing the special counsel’s report of his investigations into then-President Donald Trump’s efforts to overturn the 2020 presidential election and the alleged mishandling of classified documents after Trump left office.

Smith gave his final, two-volume report to the attorney general on Tuesday. Garland has indicated he would not release the part of the report regarding the classified documents investigation, but believes it should be public eventually.

Smith’s office has been in the wind-down process for weeks, and his resignation before Trump takes office isn’t unexpected. In addition to finalizing its report and sending it to the attorney general, Smith’s team had also handed off an ongoing appeal over the special counsel’s office powers to other attorneys at the Department of Justice and dismissed the two federal criminal cases against Trump because of his return to the presidency.

The attorney general has also told congressional committee leaders he intends to give to them confidential access to Smith’s volume on the classified documents case — making this weekend and next week a crucial window for AG Merrick Garland’s intentions of transparency.

In the meantime, the Justice Department is battling in court with Trump and his former co-defendants over whether Smith’s report can be made public, with the clock ticking down to the the January 20 inauguration. Trump is planning to appoint some members of his defense team, who have argued in court against publication, to high-level positions at the Justice Department.

An appeals court on Friday rejected a request from Trump and his allies to keep the report under wraps. The Justice Department has since appealed a temporary hold that Judge Aileen Cannon placed on the report’s release, and the former defendants have asked her to extend that hold, which otherwise expires Sunday evening.

As the court fight stands now, the Justice Department may be able to release Smith’s first volume to the public Sunday or Monday. Cannon, however, has asked for more information from the Justice Department by Sunday morning about what’s in Volume 1 and whether any of it bears on the classified documents case.

Smith was appointed by Garland to take over the documents and election subversion investigations in November 2022, after Trump announced his campaign for reelection. A former federal prosecutor, Smith had more recently served as a war crimes prosecutor at the Hague.

He brought charges against Trump in both investigations in 2023, but both prosecutions ran into legal setbacks, and with voters’ decision to return Trump to the White House, the president-elect was dismissed from the cases.

One legacy from Smith’s investigations is the sweeping presidential immunity ruling handed down by the Supreme Court in the election subversion case, which set a very high bar for prosecuting a former president for his official acts in office.

Trump and his allies on the Hill have publicly discussed investigations they intend to launch into the special counsel probes.

The report potentially acts as Smith’s final word on what his investigations found, and their legal reasoning. The current court fight aside, there are other avenues by which the report might become public. Congress could take steps to obtain the report or information from it. There is also the possibility of Freedom of Information Acts requests, and litigation stemming from those requests, forcing the disclosure of details from the report.

Trump’s former co-defendants, Walt Nauta and Carlos DeOliveira, are arguing that the report should not be shared with Congress or the public because it would be prejudicial in the event that the prosecution against them — dismissed by Judge Cannon on the grounds that Smith was unconstitutionally appointed — was revived by an appeals court.

The new filing from DOJ countered that argument by pointing to Garland’s decision not to publicly release that report and by noting that the lawmakers that would be allowed to view it, under Garland’s plan, would be prohibited from sharing details from it.

Trump and his allies are also arguing that Cannon’s ruling disqualifying Smith deprived him of the power to write the report and prevents Garland from releasing it.

This story has been updated with additional reporting.

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