The Grand Finale: Trump Tries to Block His Sentencing and Smith’s Final Report

[This article will be updated as developments occur.]

In the final weeks before the inauguration, President-elect Donald Trump’s attorneys have filed a flurry of petitions in multiple courts, in an effort to achieve two goals. First, he seeks to prevent his sentencing on his 34 felony convictions in the New York hush-money case—currently set for 9:30 a.m. on Jan. 10, 2025—from ever taking place. Second, he wants to block Attorney General Merrick Garland from making public any portion of Special Counsel Jack Smith’s Final Report concerning his prosecutions of Trump on four felony counts alleging election-interference in Washington, D.C., and on 32 counts of willful retention of classified documents and eight counts of obstruction of justice in the Southern District of Florida.

In the New York case, on Jan. 5, Trump filed “President Trump’s Notice of Automatic Stay of Criminal Proceedings or, in the Alternative, Motion for Immediate Stay” before Justice Juan Merchan in state supreme court in Manhattan. It argues that two outstanding immunity issues—whether official acts were improperly used as evidence at his trial and whether a president-elect is entitled to the same absolute immunity from criminal proceedings as a sitting president—require immediate appellate resolution before his sentencing can take place.

District Attorney Alvin Bragg filed his Memorandum of Law in Opposition the following day, and Justice Merchan denied the motion in a two-page Decision and Order later that same day.

That afternoon, Trump brought an Article 78 petition—a mandamus-like action—to the Appellate Division, First Department. For reasons that are unclear, he filed a second version of that petition the next day, and then filed an additional petition for “Expedited Service and/or Interim Relief.” A single justice of that court, Ellen Gesner, heard oral argument on Jan. 7 and denied relief in a one-sentence order shortly thereafter.

Later that evening, Trump filed an application to stay his sentencing in the U.S. Supreme Court. It asks the Court to resolve whether he’s entitled to an automatic stay while his claims of immunity are litigated in the New York appellate courts; whether presidential official acts evidence was improperly used at his trial; and whether a sitting president’s complete immunity from prosecution extends to a president-elect. The stay petition was referred to Justice Sonia Sotomayor, who asked D.A. Bragg to file a response by 10 a.m. on Jan. 9. According to the application, Trump simultaneously made a similar application to the New York Court of Appeals. 

On Jan. 8, D.A. Bragg responded in the New York Court of Appeals with a 19-page letter brief in opposition. On the morning of Jan. 9, that court denied a stay in a two-sentence letter.

On Jan. 9, D.A. Bragg filed his 37-page brief in the U.S. Supreme Court opposing the stay.  The brief argues that there is no basis for intervening at this juncture, stressing that Justice Merchan has already indicated he would sentence Trump to an “unconditional discharge”—which Bragg does not oppose—and that Trump could thereafter “appeal every preserved argument in the ordinary course.”

Litigation over Special Counsel Jack Smith’s Final Report began on Jan. 6 in federal court in the Southern District of Florida. That day, Trump’s codefendants in the classified documents case, Waltine Nauta and Carlos De Oliveira, filed an “Emergency Motion to Preclude the Government from Issuing a Purported Special Counsel Report” before Judge Aileen Cannon. Cannon had presided over the classified documents case, though she’d dismissed and closed it on July 15, 2024, finding that Attorney General Garland had lacked statutory authority to appoint Smith to that position. Her dismissal order is now on appeal before the U.S. Court of Appeals for the Eleventh Circuit. After the November election, Special Counsel Smith dropped his appeal regarding President-elect Trump, but the appeal remains pending for codefendants Waltine Nauta and Carlos De Oliveira.

In their petition on Jan. 6, Nauta and De Oliveira asked Judge Cannon to enjoin Smith from providing the report to Attorney General Garland and to enjoin Garland from making it public. They argued that because Smith was improperly appointed, his work was a nullity, and that, in any case, releasing a report on the classified document case would taint the jury and compromise their due process rights if the Eleventh Circuit should ever reinstate the case. Nauta and De Oliveira’s motion included as “Exhibit A” a letter from Trump’s attorney to Attorney General Garland, also dated Jan. 6, demanding that Smith “terminate all efforts toward the preparation and release of” the report. 

The next morning, the government filed a “notice” with Judge Cannon, apprising her that the parties were still conferring; that Special Counsel would not submit the volume of its two-volume report relating to the classified documents case to Attorney General Garland before 1 p.m. that same day (Jan. 7); that Garland would not release any portion of that report—"if he does at all”—before Jan. 10 at 10 a.m.; and that the government would file a response by 7 p.m. on Jan. 7.

Shortly thereafter, Trump filed with Judge Cannon a Motion For Leave to Intervene or, in the Alternative, Participate as an Amicus Curiae, supporting his codefendants’ motion.

That same morning of Jan. 7—and perhaps reflecting concern about whether Judge Cannon had jurisdiction to rule on a matter in a case she had dismissed and that was currently on appeal—Nauta and De Oliveira filed an “Emergency Motion” in the Eleventh Circuit asking for an order granting either the same relief they were seeking before Judge Cannon, or granting a limited remand to Judge Cannon so that she could handle the motion.

Sometime before 1 p.m. on Jan. 7, Judge Cannon—without waiting to see any papers from the government—issued an order “temporarily enjoining” Garland, “the Department of Justice, Special Counsel Smith, all of their officers, agents, and employees, and all persons acting in active concert or participation with such individuals” from “releasing, sharing or transmitting” the report or any of its drafts or “information or conclusions” outside the Department of Justice. The order was to last three days—until the Eleventh Circuit had an opportunity to act—and was intended “to preserve the status quo,” “prevent irreparable harm,” and “permit an orderly and deliberative sequence of events.”

Later that day the government provided a second notice to Judge Cannon explaining that, in light of her order, it would file its response to Nauta and De Oliveira’s emergency motion before the Eleventh Circuit.

On the morning of Jan. 8, the government did file its Opposition to the Motion for an Injunction with the appellate court. It argues that there is “no need or legal basis” for an injunction. The government writes that the Attorney General, at the recommendation of the Special Counsel, intends to release publicly only Volume I of the report, dealing with the 2020 presidential election, but that, “to avoid any risk of prejudice to defendants Nauta and De Oliveira,” he will not release Volume II, concerning the documents case, “so long as defendants’ criminal proceedings remain pending.” The government also argues that the Nauta and De Oliveira have “no cognizable interest in Volume I,” nor is there any “legal basis” for “any other interested party” to block it.

A little before 5 p.m. on Jan. 8, Nauta and Oliveira filed their reply brief, arguing for a remand to Judge Cannon, maintaining that the case “does not present, as the government suggests, a ‘straightforward legal question’ appropriate for this Court court to address in the first instance.

Late on Jan. 8, Trump asked permission to file this amicus brief in the Eleventh Circuit. It asks the court to "block release of the entire Final Report" arguing, among other things, that its release would violate the Presidential Transition Act. It calls the report "another attempted political hit job which sole purpose is to disrupt the Presidential transition and undermine President Trump’s exercise of executive power."