Judge in Trump classified documents case hears challenge to special counsel appointment

U.S. District Judge Aileen Cannon held a hearing Friday on former President Donald Trump’s motion to dismiss the classified documents indictment against him on the grounds that the appointment of special counsel Jack Smith was unconstitutional.

In federal court in Fort Pierce, Fla., Trump’s lawyers argued that an officer such as the special counsel must be appointed “by statute” and that the special counsel should be classified as a “principal officer.” and submitted for Senate confirmation. The statutory text cited by the special prosecutor’s office “does not authorize” the appointment of the special prosecutor by the US attorney general, argued his lawyer, Emil Bove.

Judge Aileen Cannon.US District Court for the Southern District of Florida / AFP via Getty Images file

Cannon was skeptical of some of the defense team’s arguments, including that the attorney general’s appointing special counsels with the authority of a U.S. attorney is akin to “the power to appoint a shadow government “.

“It seems very worrying, a shadow government. But what does that mean?” asked Cannon.

Bove said such an outcome would come from the attorney general being able to appoint people with law enforcement powers without oversight.

“But is this really a realistic risk” when you have “well-defined statutes” concerning the power of appointment of the Attorney General?

Cannon also asked about the history of the use of special advocates, independent counsel and special prosecutors, in some cases dating back to the 1800s.

Speaking on behalf of the special prosecutor’s office, James Pearce disputed the notion that Smith’s appointment violates the Constitution, saying the argument ignores precedent, would have “pernicious consequences” and has already been resolved in the case of US v. Nixon, the Watergate-era case in which the Supreme Court ruled that then-President Richard Nixon had to release audio recordings and other evidence related to the scandal. Pearce argued that in the Nixon case, the courts held that the attorney general had the authority to appoint a special counsel with the authority to independently investigate.

Pearce responded to Bove’s attempts to draw a distinction between civil servants and officers, arguing that “official” is a “catch-all” term for officers and employees.

He also cited historical precedent, including the appointment of independent special advisers by Presidents Ulysses S. Grant and Theodore Roosevelt, before pointing out that Congress had long approved the practice of appointing independent special advisers.

On Friday, three outside parties who had filed briefs also presented their arguments in court.

Toward the end of the hearing, Cannon asked the prosecution several questions, including: “Did the attorney general play an oversight role in pursuing the indictment?” »

Citing politics, Pearce moved forward to respond. In response, Cannon asked why there would be heartburn if Attorney General Merrick Garland signed the indictment in the classified documents case, regardless of policy. Pearce said he didn’t want to appear to be hiding anything, but argued it would be against policy to answer that specific question.

Before the court adjourned, Cannon asked prosecutors and the defense to file all additional materials, including statutory citations and case law, in documents no longer than five pages long. She did not make a decision.

Garland appointed Smith as special counsel in November 2022, tasking him with overseeing federal investigations into Trump’s handling of classified documents after he was president as well as his efforts to overturn the results of the 2020 presidential election.

Friday’s hearing focused on a motion filed by Trump’s lawyers in February, arguing that the Constitution’s Appointments Clause “does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and political ally who shares the same ideas to exercise the power of prosecution against the United States. As such, Jack Smith does not have the authority to pursue this action.

Trump’s lawyers also wrote that “because neither the Constitution nor Congress created the position of ‘special counsel,’ Smith’s appointment is invalid.”

They further argued that funding Smith’s investigation violated the Appropriations Clause of the Constitution.

“President Biden’s DOJ is funding this politically motivated prosecution of Biden’s primary political rival ‘off the record,’ without accountability or authorization,” their motion states. “Rather than funding the Office of Special Counsel through the regular budget process, Jack Smith is relying on a permanent appropriation for an indefinite period which, by its terms and under Reno regulations, is not available for the special advisor. Thus, Smith’s financing violates the Appropriations Clause. “

Therefore, the court should dismiss the indictment against the former president and the two other defendants in the case, Walt Nauta and Carlos De Oliveira, Trump’s lawyers said.

In response, the special counsel team argued that the attorney general has the legal authority to appoint “inferior officers” and that previous court decisions have upheld the attorney general’s authority to appoint special counsels.

The arguments made by Trump’s legal team have been unsuccessfully used against previous special advisers, including Robert Mueller and David Weiss.

Friday’s court proceeding was the first of three consecutive hearings Cannon is holding, with the others scheduled for Monday and Tuesday.

An earlier trial date was canceled in this case and no later date has been set. The hearing comes weeks after the verdict in Trump’s hush money case in New York, where he was found guilty of 34 counts of falsifying business records. It was the first time a former US president had been convicted of a crime.

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