The Justice Department moved Wednesday to drop its appeal of a federal court order dismissing the criminal charges against President Donald Trump's former co-defendants in the classified documents case, which would effectively end the case.
Then-U.S. Attorney General Merrick Garland had cited the pending appeal as the reason he would not publicly release special counsel Jack Smith's report on the criminal case he'd brought against Trump, saying it could affect the due process rights of the co-defendants, Walt Nauta and Carlos De Oliveira.
The Justice Department's motion to the 11th U.S. Circuit Court of Appeals to drop the appeal was filed by Hayden O'Byrne, who was named the interim U.S. attorney for the Southern District of Florida this week, The Miami Herald reported.
In a separate move Wednesday, the new acting U.S. attorney in Washington, D.C., moved to dismiss a case against another Trump ally, Republican former Rep. Jeff Fortenberry of Nebraska.
O’Byrne's filing asks the circuit court to dismiss the Justice Department's appeal "with prejudice," which means it could not be revived later. His office was assigned the case after Smith resigned this month.
The filing notes that Nauta and De Oliveira "do not object to the voluntary dismissal." The appeals court needs to approve of the Justice Department's move for its appeal to officially be dropped.
A spokesperson for the Justice Department declined to comment on what effect the move would have on the possibility of Smith's report becoming public.
Trump and his attorneys had vehemently opposed releasing the report, as had attorneys for Nauta and De Oliveira.
U.S. District Judge Aileen Cannon, a Trump nominee, had dismissed the case against Trump, then a presidential candidate; Nauta, his aide; and Mar-a-Lago employee De Oliveira last year.
The three had been charged with taking part in a scheme to help Trump retain highly classified documents that improperly remained in his possession after he left the White House in 2021 and with obstructing the ensuing federal investigation. All three pleaded not guilty.
Cannon tossed the case out in July after she found that Smith's appointment as special counsel was illegal, which led to the current appeal. The Justice Department, an executive branch agency, dropped its case against Trump after he won the election, citing guidance from its Office of Legal Counsel that it cannot prosecute a sitting president — who heads the executive branch.
That guidance also resulted in Smith’s dropping his other case against Trump, which had charged him with conspiracy against the United States for his efforts to stay in power after he lost the 2020 presidential election.
Trump had no co-defendants in that case, and Smith's report on the matter was released this month. It included mostly information from public court filings in the case.
Trump, Nauta and De Oliveira all sought to block the release of the second volume of the report, which centered on the classified documents case.
Garland agreed not to release that volume pending the resolution of the appeal, but he still sought to share the report with congressional leaders, a move that Cannon blocked.
“Given the very strong public interest in this criminal proceeding and the absence of any enforceable limits on the proposed disclosure, there is certainly a reasonable likelihood that review by members of Congress as proposed will result in public dissemination of all or part of Volume II,” she wrote.
Cannon added that the report, which she had reviewed, includes “detailed and voluminous” information outlining the case against Trump, much of which “has not been made public in court filings.”
House Democrats on the Judiciary Committee had urged Garland to withdraw the appeal involving Nauta and De Oliveira before Trump took office so the attorney general could release the report.
They said their concerns that dismissing the case could enable further corruption “are outweighed by the many indications that Mr. Trump will simply end the prosecutions against his co-conspirators upon taking office anyway and then instruct his DOJ to permanently bury this report.”
The move to dismiss the case against Fortenberry was made by acting U.S. Attorney Ed Martin.
Fortenberry was a nine-term congressman when he was convicted in Los Angeles federal court in 2022 of lying to federal authorities about an illegal campaign contribution in 2016 from a Lebanese Nigerian billionaire.
Trump had complained at a rally in Nebraska in 2022 that the case against Fortenberry was "very unfair," according to the Nebraska Examiner.
The case was dismissed after an appeals court found that the venue was improper and that Fortenberry should have been charged in Nebraska or Washington, D.C.
Prosecutors refiled the case in Washington last year. Like O'Byrne's motion, Martin’s filing asks that the case be dismissed with prejudice.
Trump celebrated the move on social media.
"It is great to see that the Department of Justice has dropped the Witch Hunt against former Congressman Jeff Fortenberry, a longtime proud and highly respected American public servant," he wrote on Truth Social.
"The charges were totally baseless. That Scam is now over, so Jeff and his family can go back to having a great life together, and be a part of our Country’s future as we MAKE AMERICA GREAT AGAIN. I am very proud of our Department of Justice, something I have not been able to say for many years!"
