(WASHINGTON) — Lawyers for former President Donald Trump argued Friday that Jack Smith’s appointment as special counsel in Trump’s classified documents case gives the U.S. attorney general the authority to “set up a shadow government” by giving Smith the authority to serve in government without being confirmed by the Senate.
“That sounds very ominous,” U.S. District Judge Aileen Cannon said, before she asked whether that is really a realistic risk given there are well-defined special counsel regulations.
Trump’s lawyers made the argument as part of their efforts to have the classified documents case dismissed on the grounds that Smith’s appointment was unlawful — an issue other courts have largely rejected.
Trump attorney Emil Bove argued Friday that it was a realistic risk given Smith was convening and relying on grand jury proceedings in Washington, D.C., and “avoiding judges on this bench,” referring to district judges in Florida.
“I don’t know if it’s fair to draw aspersions,” replied Cannon, who has been overseeing the classified documents case against the former president.
Bove said they wanted clarity on the level of engagement between the special counsel’s office and the attorney general in order to resolve the motion — suggesting an evidentiary hearing was needed.
Cannon appeared skeptical at times about Trump’s argument, but at the same time seemed to indulge some of it.
The hearing then devolved into a history lesson, dating back to special counsel appointments under President Ulysses S. Grant and the definitions of specific words in the special counsel appointments clause.
The Trump team’s arguments are based on a legal theory pushed by conservative legal critics of the special counsel, who has been overseeing the case against Trump since his appointment by Attorney General Merrick Garland in November 2022.
Trump pleaded not guilty last June to 37 criminal counts related to his handling of classified materials after leaving the White House, after Smith said he repeatedly refused to return hundreds of documents containing classified information ranging from U.S. nuclear secrets to the nation’s defense capabilities, and took steps to thwart the government’s efforts to get the documents back.
Trump has denied all charges and denounced the probe as a political witch hunt.
Judge Cannon set aside all of Friday for arguments, kicking off a series of related hearings that will continue into next week.
On Monday Cannon will hear arguments on a motion brought by Trump challenging the funding of the special counsel’s office. The same day, Cannon will hear additional arguments over Smith’s request for a limited gag order limiting Trump’s rhetoric about law enforcement involved in the search of his Mar-a-Lago estate in August 2022.
Then on Tuesday the judge is scheduled to consider Trump’s request to throw out evidence gathered during that search, as well as testimony provided by Evan Corcoran, Trump’s former lead attorney who Smith has alleged Trump misled as part of Trump’s efforts to obstruct the government’s investigation.
The trial in the case had originally been scheduled to begin on May 20, but last month Cannon indefinitely postponed the trial’s start date pending the resolution of pretrial litigation, making it all but certain the case won’t go to trial before Election Day.
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