Judge in Trump classified documents case hearing arguments on appointing Jack Smith as special counsel

Washington — Special Counsel Jack Smith and attorneys for former president Donald Trump are returning to a Florida federal courtroom Friday to begin three days of hearings to determine, among other issues, whether Smith should even be allowed to prosecute Trump.

U.S. District Judge Aileen Cannon, Southern District of Florida

U.S. District Court, Southern District of Florida

The former president challenged the special counsel’s appointment and funding and argued in papers filed in February that Smith “does not have the authority to pursue this action.” Trump’s legal team used a legal theory that was rejected by the courts. to oppose other independent Department of Justice investigations. Trump’s lawyers say Attorney General Merrick Garland lacked the constitutional authority to appoint Smith, arguing that a special counsel must be appointed by the president and approved by the Senate.

In court, the government warned of pernicious consequences if Trump’s view were accepted, including that other Justice Department officials would no longer have the authority to pursue critical work.

District Court Judge Aileen Cannon took the unusual step of inviting outside groups to argue each side of the issue in court. Former federal prosecutors and elected officials filed a brief in support of Smith’s nomination and urged him to rule against Trump quickly to avoid what they say are unnecessary hearings on the issue. The group includes former Justice Department officials who served under Republican presidential administrations and a former Republican member of Congress.

On the other side, former U.S. Attorneys General Edwin Meese and Michael Mukasey, who each served as attorney general in Republican administrations, wrote in support of Trump’s challenge. They said “nearly all” of the special prosecutors in recent history had been previously appointed by the sitting president and approved by the Senate as U.S. attorneys. Smith was “neither,” they wrote, a claim the group will make in court Friday.

Trump’s team also took issue with the funds the Justice Department uses to fund special counsel investigations — an infinite sum of federal funds that Congress allocates to special counsels to do their jobs.

In legal filings earlier this year, the special prosecutor defended his appointment and wrote that Congress authorizes the attorney general to direct prosecutors to conduct independent investigations for the Justice Department. Smith’s appointment was sanctioned by special counsel regulations that have governed the work of other investigations, including that of former special counsels Robert Mueller and John Durham, both appointed during the Trump administration, prosecutors wrote.

“Attorneys general have long used these powers to appoint special prosecutors with responsibilities such as those of the special prosecutor, with the consistent support of Congress, the executive branch, and the courts,” Smith wrote.

Trump’s example resembles a failed strategy by President Biden’s son Hunter, which Biden try in his attempt to dismiss two complaints filed against him by another special counsel, David Weiss, who was appointed U.S. attorney in Delaware by Trump.

Prosecutors also argued that Trump’s assertion that the special prosecutor is not properly funded “lacks merit,” based on legal and historical precedent.

Cannon has not yet set a trial date for the case against Trump and is still considering numerous legal challenges filed earlier this year. The former president is accused of mishandling national defense information — including some of the federal government’s most classified documents — after leaving office. He and two aides are also accused of engaging in an alleged scheme to obstruct the investigation of the classified files.

All three have He pleaded not guilty and denied any wrongdoing. None of the accused are required to attend the upcoming hearings, which will also focus on a proposed gag order because of Trump’s speech.

Last month, the special prosecutor launched an effort to limit Trump’s public comments on law enforcement in the case. Smith asked Cannon to modify the former president’s pretrial release conditions to prohibit him from making comments similar to those he has made in recent months about the case. Smith alleged that Trump “endangered the law enforcement officers involved in the investigation and prosecution of this matter and threatened the integrity of these proceedings.”

Federal prosecutors moved to limit Trump’s public comments after he made false claims that FBI agents were “authorized to shoot” him while executing a court-authorized search warrant at his Mar-a-Lago residence in August 2022. Trump was not at Mar-a-Lago during the search, as of during which agents recovered more than 100 documents with classified information. markings as part of the federal investigation into the former president’s handling of sensitive government documents.

Smith alleged that Trump had “grossly misrepresented these standard practices by falsely portraying them as a plan to kill him, his family and U.S. Secret Service agents.” Without offering specific cases, prosecutors wrote that Trump’s language “poses[s] a significant, imminent and avoidable danger to law enforcement officers” and should therefore be reduced.

Trump’s legal team responded and accused prosecutors of trying to limit the former president’s speech on the campaign trail.

Cannon is expected to consider their arguments in court Monday after hearing from both sides on the issue of Smith’s appointment of a special counsel.

On Tuesday, the judge will hold a closed hearing on the client-privilege issues and hear arguments on evidentiary issues in open court.

Smith also charged the former president with four counts amounting to an alleged conspiracy to unlawfully object to the outcome of the election. 2020 presidential election. He has pleaded not guilty to those charges and the case has been stayed while the Supreme Court considers his claims of presidential immunity from prosecution.

With the Supreme Court case still ongoing and Cannon’s lengthy pre-trial timeline, the chances of any of Smith’s cases against Trump going to trial before the presidential election are diminished.

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