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

US District Judge Aileen Cannon is holding a hearing on Friday on the former president donald trumpmotion to dismiss the accusation of confidential documents against him on the grounds that the special counsel Jack Smiththe appointment was unconstitutional.

In federal court in Fort Pierce, Florida, Trump’s lawyers argued that a special counsel officer must be appointed “by law” and that the special counsel must be classified as a “principal officer” and subject to Senate confirmation. The legal text cited by the special prosecutor’s office “does not authorize” the attorney general’s appointment of the special prosecutor, his lawyer, Emil Bove, argued.

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

“This looks very threatening, a parallel government. But what does that mean?” Cannon asked.

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

“But is that really a realistic risk” when you have “well-defined statutes” regarding the attorney general’s appointment authority? Cannon asked.

Cannon also asked about the history of the use of special counsel, independent counsel and special prosecutors, in some cases dating back to the 19th century.

Defending the special counsel’s office, James Pearce refuted the notion that Smith’s appointment violates the Constitution, saying it disregards precedent, would have “pernicious consequences” and has already been resolved in U.S. v. Nixon, the Watergate-era case in which the Supreme Court concluded 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 officers and directors by arguing that “officer” is a “catch-all” term for officers and employees.

He also outlined historical precedents, including the appointments of independent special advisors by Presidents Ulysses S. Grant and Theodore Roosevelt, before noting that Congress has long approved the practice of appointing independent special advisors.

Attorney General Merrick 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 presidential election results of 2020.

Friday’s hearing addressed a motion filed by Trump’s lawyers in February alleging that the Constitution’s Appointments Clause “does not permit the Attorney General to nominate, without Senate confirmation, a private citizen and political ally with ideas similar to exercise the power of prosecutor”. the United States. As such, Jack Smith does not have the authority to prosecute this action.”

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

They also argued that funding Smith’s investigation violates the Constitution’s appropriations clause.

“President Biden’s DOJ is paying for this politically motivated prosecution of Biden’s main political rival ‘off the books,’ without accountability or authorization,” the motion said. “Instead of funding the Office of Special Counsel through the regular budget process, Jack Smith relies on a permanent, indefinite appropriation that, by its terms and under the Reno Regulations, is not available to the Special Counsel. Thus, funding of Smith violates the Appropriations Clause.”

Consequently, the court should dismiss the superseding indictment against him and the other two defendants in the case, Walt Nauta and Carlos De Oliveira, they said.

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

Trump’s legal team’s arguments were unsuccessfully raised against previous special advisorsincluding Robert Mueller and David Weiss.

Outside parties will also be able to present arguments in the Florida courtroom for up to 30 minutes on Friday, with the Trump and special counsel teams each having the opportunity to rebut as needed. Three groups submitted petitions and received permission to present them.

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

A previous trial date was canceled in the case and no future date has been set. The hearing takes place a few weeks later Trump was found guilty of 34 criminal counts of falsifying business recordswhich was the first time a former president was convicted of a crime.

This article was originally published in NBCNews. with