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Lawyers for Donald Trump made a longshot argument on 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 and bring 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 defence has raised, so far unsuccessfully, in the year since the charges were brought.
US District Judge Aileen Cannon heard several hours of arguments on Friday from lawyers for both sides, with Trump attorney Emil Bove at one point asserting that the Justice Department could create a “shadow government” through the appointment of special counsels.
Prosecutors say there was nothing improper or unusual about Smith’s appointment.
Cannon did not immediately rule, but in an unusual move, has agreed to hear arguments later in the day from legal experts who are not part of the case.
Even as Smith’s team looks to press forward on a prosecution seen by many legal experts as the most straightforward and clear-cut of the four prosecutions against Trump, Friday’s arguments aren’t about allegations against the former president.
They’ll centre instead on decades-old regulations governing the appointment of Justice Department special counsels like Smith, reflecting the judge’s continued willingness to entertain defence arguments that prosecutors say are frivolous and meritless, contributing to the indefinite cancellation of a trial date.
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.
Since then, she has been intensely scrutinised over her handling of the case, including for taking months to issue rulings and for scheduling hearings on legally specious claims — all of which have combined to make a trial before the November presidential election a virtual impossibility.
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 New York Times, citing two anonymous sources, reported on Thursday that two judges — including the chief federal judge in the southern district of Florida — urged Cannon to step aside from the case shortly after she was assigned to it.
The hearing is unfolding just weeks after Trump was convicted in a separate state case in New York of falsifying business records to cover up a hush money payment to a porn actor who has said she had sex with him.
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 on charges that he schemed to overturn the results of the 2020 presidential election.
At issue in Friday’s hearing is a Trump team claim 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 that he was assigned to lead was not also created by Congress.
Smith’s team has said 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.
On the agenda 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.
The restrictions were sought after Trump falsely claimed the agents who searched his Mar-a-Lago estate for classified documents in August 2022 were prepared to kill him even though he was citing boilerplate language from standard FBI policy about use of force during the execution of search warrants.
The FBI had intentionally selected a day for the search when it knew Trump and his family would be out of town.
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 defence lawyers before seeking the gag restrictions. But prosecutors subsequently renewed the request.
Another issue set to be discussed next week is a defence 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 defence team.
Though attorney-client privilege protects defence 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.
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, 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.
