(Headline USA) Lawyers for Donald Trump argued Friday that the Justice Department prosecutor who charged the former president with hoarding classified documents at his Florida estate was illegally appointed and that the case should therefore be dismissed.
The challenge to the legality of special counsel Jack Smith’s appointment kicked off a three-day hearing that is set to continue next week. It brings further delays to a criminal case that had been scheduled for trial last month but has been snarled by a pileup of unresolved legal disputes.
The motion questioning Smith’s selection and funding by the Justice Department is one of multiple challenges to the indictment the defense has raised, so far unsuccessfully, in the year since the charges were brought.
This particular argument, however, has more than just procedural implications. Initially floated last year by former Reagan Attorney General Ed Meese, in an amicus brief as part of Smith’s Washington, D.C., lawfare case against Trump, it contends that current Attorney General Merrick Garland circumvented the normal process for appointing a special counsel through the DOJ.
The decision to go outside the DOJ—recruiting Smith instead from a globalist court in The Hague, Switzerland—meant that he never received the constitutionally mandated advice and consent of the U.S. Senate that other officials did prior to receiving special counsel appointments.
Lawyers for both sides argued their cases for several hours Friday, with Trump attorney Emil Bove at one point asserting that the DOJ could create a “shadow government” through the appointment of special counsels who were entirely unaccountable to any sort of vetting or oversight.
Normal protocol has been for special counsels to be created by Congress and not the attorney general, although the DOJ then has discretion on whom to appoint from within the existing network if U.S. attorneys who have been confirmed by the Senate.
Smith’s team has insisted Garland was fully empowered as the head of the Justice Department to make the appointment and to delegate prosecutorial decisions to him. They note that a similar argument failed during a challenge to the special counsel appointment of Robert Mueller, who was tapped during the Trump administration to investigate potential ties between Russia and Trump’s 2016 campaign.
The Mueller investigation was authorized by Congress, and Attorney General Jeff Sessions pointedly recused himself from the case—much to Trump’s chagrin—to avoid the perception of any partisan conflicts of interest. Garland, by contrast, has brazenly plowed ahead, despite multiple criticisms over the appearance that his actions have explicit partisan motivations.
U.S. District Judge Aileen Cannon did not immediately rule, but in an unusual move, she agreed to hear arguments later in the day from legal experts who were not part of the case.
Even as Smith’s status comes under scrutiny, however, leftists have launched a sustained attack on the judge herself, waging an all-out war to get her removed from the case by leveraging whatever institutional power they can muster.
That has included activist campaigns to file hundreds of form complaints about Cannon, as well as recruiting leftist judges to pressure her into recusing herself.
Cannon, a Trump appointee, had exasperated prosecutors even before the June 2023 indictment by granting a Trump request to have an independent arbiter review the classified documents taken from Mar-a-Lago—an order that was overturned by a unanimous federal appeals panel.
She was rebuked in March by prosecutors after she asked both sides to formulate jury instructions and to respond to a premise of the case that Smith’s team called “fundamentally flawed.”
The leftist prosecutors were outraged by the notion that the jury should be granted access to all the evidence in the trial, including the still-classified documents seized by Biden officials, who dubiously claimed that they were a threat to national security.
Trump has argued that under the Presidential Records Act he had broad powers to declassify documents from his administration and to determine which of those documents belonged in the National Archives.
Cannon’s ruling asserted that for Trump to receive his constitutional rights to due process, equal protection under the law and trial by a jury of his peers, it would be the jury’s prerogative, and not Smith’s, to decide whether the documents in question belonged in Trump’s possession.
Meanwhile, the Supreme Court is poised to issue within days a landmark opinion on whether Trump is immune from prosecution for acts he took in office or whether he can be be prosecuted by Smith’s team for his efforts to investigate and challenge the results of the highly disputed 2020 presidential election.
On Cannon’s docket for next week are arguments over a limited gag order that prosecutors have requested to bar Trump from comments they fear could endanger the safety of FBI agents and other law enforcement officials involved in the case after recent revelations that the DOJ had authorized agents to kill Trump if the need arose during the dubious Mar-a-Lago raid last October.
Trump’s lawyers have said any speech restrictions would infringe on his free speech rights. Cannon initially rejected the request on technical grounds, saying prosecutors had not sufficiently conferred with defense lawyers before seeking the gag restrictions. But prosecutors subsequently renewed the request.
Another issue set to be discussed next week is a defense request to exclude from the case evidence seized by the FBI during the Mar-a-Lago search, and to dismiss the indictment because of evidence it includes that came from former members of Trump’s defense team.
Though attorney–client privilege protects defense lawyers from being forced to testify about their confidential conversations with clients, prosecutors can get around that shield if they can establish that the lawyer’s legal services are being used to further a crime.
In their indictment last year, prosecutors repeatedly cited details of conversations Trump had with M. Evan Corcoran, an attorney who represented the former president during the investigation and who was forced by a judge to appear before the grand jury investigating Trump.
Questions remain surrounding the process by which the FBI obtained access to those conversations and whether it had probable cause for violating Trump’s attorney–client privilege to do so in the first place.
Critics suggest that the agency was, in fact, fishing for a crime to reverse-engineer its justification for eavesdropping on Trump’s privileged legal conversations so that the agents themselves weren’t accused of illegal conduct.
Adapted from reporting by the Associated Press
