FORT PIERCE, Fla. – The federal judge who presides over the confidential documents case against former president Donald Trump is hearing arguments Friday about a risky effort by the defense to dismiss the indictment based on the claim that the prosecutor who brought the charges was illegally appointed.
Arguments about the legality of appointment of special counsel Jack Smith begin a three-day hearing that is expected to continue next week and bring further delays in a criminal case which had been scheduled for trial last month but was embroiled in a series of unresolved legal disputes. The motion questioning the Justice Department’s selection and funding of Smith is one of multiple challenges to the prosecution that the defense has raised, so far unsuccessfully, in the year since the charges were filed.
Even as Smith’s team seeks to move forward with a case seen by many legal experts as the most direct and clear-cut of the four cases against Trump, Friday’s arguments before U.S. District Judge Aileen Cannon will not involve discussion of the allegations. against the first. President. Instead, they will focus on decades-old regulations governing the appointment of Justice Department special counsels like Smith, reflecting the judge’s continued willingness to consider defense arguments that prosecutors consider unfounded, contributing to the indefinite cancellation of a trial date.
Cannon, a Trump appointee, exasperated prosecutors even before the June 2023 indictment for granting Trump’s request to have an independent arbitrator review confidential documents taken from Mar-a-Lago — an order that was overturned by a unanimous federal appeals panel.
Since then, she has come under intense scrutiny over her handling of the case, including for taking months to issue rulings and for scheduling hearings on legally specious claims — all of which combined to make a trial before November’s presidential election a virtual impossibility. She was reprimanded in March by prosecutors after asking both sides to formulate jury instructions and to respond to a premise of the case that Smith’s team called “fundamentally flawed.”
The New York Times, citing two anonymous sources, reported Thursday that two judges — including the chief federal judge for the Southern District of Florida — urged Cannon to step aside from the case after she was assigned to it.
The hearing is taking place a few weeks later Trump was convicted in a separate state case in New York of falsifying business records to cover up a secret payment to a porn star who said he had sex with him. About that, the Supreme Court must issue a historic opinion about whether Trump is immune from prosecution for actions he took in office or whether he could be sued by Smith’s team on allegations that he planned to overturn the results of the 2020 presidential election.
At issue in Friday’s hearing is an allegation by Trump’s team that Smith was illegally appointed in November 2022 by Attorney General Merrick Garland because he was not first approved by Congress and because the special counsel office he was appointed to lead it was also not created by Congress.
Smith’s team said Garland had full power as head of the Justice Department to make the appointment and delegate prosecutorial decisions to him. Prosecutors also note that courts have upheld prior appointments of special counsel, including Robert Mueller for Trump’s Justice Department.
On next week’s agenda are discussions about a limited gag order that prosecutors have requested a ban on Trump making comments they fear could endanger the safety of FBI agents and other law enforcement officials involved in the case.
The restrictions were requested after Trump falsely claimed that agents who searched his Mar-a-Lago estate for confidential documents in August 2022 were prepared to kill him, even though he was quoting clichéd language FBI standard policy on the use of force during the execution of search and seizure warrants. The FBI intentionally chose a day for the search when it knew Trump and his family would be out of town.
Trump’s lawyers said any restrictions on speech would violate his free speech rights. Cannon initially rejected the request for technical reasons, saying prosecutors did not speak sufficiently with defense attorneys before seeking gag restrictions. But prosecutors later renewed the request.
Another issue 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 from former members of the Trump’s defense. .
Although attorney-client privilege protects defense attorneys from being forced to testify about their confidential conversations with clients, prosecutors can get around this shield if they can establish that the attorney’s legal services are being used to further a crime.
That’s what happened last year in the classified documents investigation, with prosecutors in their indictment repeatedly citing details of conversations Trump had with M. Evan Corcoran, a lawyer who represented the former president during the investigation and that he was forced by a judge to appear before the grand jury investigating Trump.
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Tucker reported from Washington.
