Was it for nothing?

At the end of last week, special counsel Jack Smith took steps to put an end to January 6, prosecution of current President-elect Donald Trump. Black-smith informed Judge Tanya Chutkan that by December 2 he would provide an additional update given the “unprecedented circumstances” of his defendant’s election to the presidency. Justice Department policy prohibits prosecuting a sitting president, a restrictive policy for federal prosecutors. Although Smith could continue his work until the curtain falls on the Biden administration, it appears a different path is now being considered.

In the meantime, Prosecution of Smith’s classified documents in the Southern District of Florida remains in a legal vacuum. The case is on appeal after being removed from office by Judge Aileen Cannonwhich found the appointment of the special prosecutor unconstitutional. This is an important legal question, one that goes beyond this particular lawsuit, and one that the Justice Department will want to resolve in order to know what rules apply to future special counsel cases. The case is in a different situation than that of January 6 because there are two defendants in addition to Trump. Dismissing the case against him would not automatically kill the entire case, although that is the likely scenario once he regains control of the DOJ.

As of now, we don’t know how Smith plans to proceed in Florida. But his response brief, the final brief in the appeal now before the 11th Circuit, is due Friday. It is possible that the DOJ intends to move forward to resolve the legal issue, if possible, but still intends to conclude the matter before the end of the administration.

Hopefully, however Smith proceeds in Florida, he won’t allow the investigative work that allowed him to build his case to disappear. The facts of the Washington, D.C. case, as well as much of the evidence presented by the government, are public knowledge. They were revealed in the pleadings and widely discussed in the media. There is a public record that preserves the evidence. But that’s not the case in the classified documents case, where, aside from what’s in the search warrant affidavit, very little is known beyond the basic facts. We don’t know much about a case in which America’s next commander in chief is accused of mishandling classified information and obstructing the investigation into it. We don’t know what Trump’s motivation was or what he did with this information.

If Smith closes the classified documents case on his watch, he will be the one to write the final report to the attorney general and likely made public. This does not mean, by the way, that all the evidence accumulated by Smith and his team would be fully disclosed to the public. For example, there are restrictions on the disclosure of grand jury documents.

This situation is very different from that of a special advocate Robert Mueller’s dilemma under the first Trump administration. In this case, Mueller refused to make a charging decision because a sitting president cannot be indicted, so he would never have a day in court to establish his innocence if charges were recommended. As a result, Mueller simply presented his evidence without making a charging decision.

This is not the dynamic that prevails in the case of Florida. Trump and his co-defendants Already was charged and the case, at least for the moment, is closed. If Smith writes a final report, Justice Department officials will have to decide what to include and make public. They will need to determine whether, since the case was dismissed on a technical legal basis and did not result in a verdict based on the evidence, it is appropriate to make the facts public. This would be a departure from normal practice when a court dismisses a lawsuit, but it is not a normal case and there are important fairness issues to consider on both sides. The next commander in chief was indicted by a grand jury for mishandling classified information and obstructing justice. It helps to have a public record documenting the evidence, regardless of what it reveals.

A criminal trial is undoubtedly the best way to discover this truth. Unlike the court of public opinion, a jury hears relevant evidence. The law is well explained. Jury members deliberate and decide whether the government has proven specific charges beyond a reasonable doubt. That won’t happen here, which benefits no one – neither the public, on whose behalf the case is being prosecuted, nor the defendant, who will not have the opportunity to persuade a jury that he is not not guilty. Given this imperfect situation, there should be, at a minimum, a permanent public record of evidence, as long as its disclosure complies with other legal restrictions. It’s a decision the Justice Department has the opportunity to make over the next two months, perhaps the most important decision it has left in these cases.