Dedicated To Restoring Our Government to Citizens' Control

SUN SENTINEL: One year after Trump classified documents indictment, defense challenge of special counsel takes center stage

It’s been a year since former President Donald Trump was indicted on charges of mishandling classified U.S. government documents and attempting to block its efforts to retrieve them.

But U.S. District Judge Aileen Cannon has postponed a trial she had set for May 20 indefinitely, citing a broad spectrum of legal issues to be resolved. In three weeks, one of the most prominent of those will focus on the constitutional authority of the government’s top prosecutor in the case, Special Counsel Jack Smith, to investigate and bring charges against Trump.

On June 21, in Cannon’s Fort Pierce federal courtroom, an unusual daylong series of legal arguments will unfold over Smith’s appointment. They are arguments, legal analysts say, that would rarely see the light of day in a trial court; they are usually reserved for the appellate courts.

Don’t Miss Out

Subscribe to our free email newsletter and get all the latest sent directly to your inbox.

Thank you for subscribing!
Something went wrong. Please try again later.

Nonetheless, speakers representing Trump and the government won’t be the only ones appearing before Cannon.

The judge has allotted 90 minutes for third-party lawyers representing nonprofit legal groups led and supported by past U.S. attorneys general, ex-elected officials including governors, and prominent law professors. Two groups will support Trump’s position that Smith has been investigating Trump as an unauthorized prosecutor. A third will argue U.S. Attorney General Merrick Garland had the authority to name Smith to lead the classified documents probe.

The groups include the nonprofit conservative Landmark Legal Foundation of Kansas City, Missouri, which is being led in this instance by former Attorney General Edwin Meese III, and Citizens United, another conservative group based in Washington that gained prominence for winning the U.S. Supreme Court decision that political spending is a form of protected free speech under the First Amendment.

The Landmark foundation is expected to argue that Smith is not a U.S. government officer but an “employee” whose appointment fails to comport with the separation of powers under the Constitution.

“The primary purpose of the Special Counsel regulations which were modeled on the Independent Counsel statute, was to avoid conflicts of interest when the executive branch investigates itself,” the foundation wrote the court. “But here, Attorney General Garland appointed Mr. Smith not to investigate someone connected to the United States Department of Justice, the President, or the Biden Administration — as was the case with Hunter Biden — but to investigate the Biden Administration’s leading political opponent.”

The naming of Smith, who was not with the government at the time he became special counsel, violated the appointments clause of the Constitution, the Meese group argues in its brief.

“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” the group argues.

Attorney Gene Schaerr, a former clerk to the late U.S. Supreme Court Justice Antonin Scalia who represents Citizens, will argue that Smith required Senate confirmation to serve as special counsel.

The government is supported by a group of prominent law professors, including Harvard University’s Laurence H. Tribe, and former elected officials, including two former Northeast governors — Christine Whitman, of New Jersey, and William Weld, of Massachusetts, as well as a group known as “State Democracy Defenders Action.” Matthew Seligman, a Washington-based constitutional lawyer and fellow at Stanford Law School who clerked at the U.S. Court of Appeals for the D.C. Circuit, will argue their position.

“Defendant Donald J. Trump and his amici contend that the appointment of Special Counsel John ‘Jack’ Smith is unlawful,” Seligman wrote in his brief to the court. “That contention is demonstrably incorrect. The Appointments Clause of the Constitution authorizes Congress to vest the power to appoint ‘inferior officers’ in the Attorney General as the head of the Department of Justice. As the Supreme Court has confirmed, a special prosecutor empowered to investigate and prosecute a particular criminal matter is such an inferior officer.”

None of the groups has had any previous involvement in the Trump case.

“The Court anticipates starting with argument from counsel for the parties; proceeding to hear argument from amici and rebuttal from the parties as necessary; and then accommodating any presentation of evidence, if deemed necessary by the Court,” Judge Cannon wrote in a recent order scheduling the hearing at the Alto Lee Adams Sr. U.S. Courthouse in Fort Pierce.

Outsized discretion?

Legal critics assert the exercise of allowing outside “friends of the court” to argue the issue is not only rare, but yet another act of delay by the judge to help Trump avoid a trial before the presidential election in November.

“All judges have the inherent power to control their dockets and set their calendars,” said Robert Jarvis, a law professor at Nova Southeastern University in Davie. “This principle has been reconfirmed by the U.S. Supreme Court many times. What is happening in this case — which is highly unusual, even unprecedented — is that Judge Cannon has decided to ‘slow walk’ the case to make sure that the trial cannot possibly start until after the presidential election, so as to help Donald Trump, the man who put her into office.

“This is a complete perversion of justice, but, unfortunately, the Eleventh Circuit has decided to let her proceed.”

Amicus briefs, he added, “are the province of appellate courts.“

Revised timetable of Trump hearings in Florida, New York

Cannon, citing new motions brought by the prosecution and defense, has again revised the case’s hearing schedule.

Here is a snapshot of what June and July will look like, according to court files and open court announcements. This list does not include filing deadlines for motions.

June 21: In Fort Pierce, a non-evidentiary hearing will be held before Judge Aileen Cannon on a defense motion to dismiss the indictment based on alleged unauthorized appointment and funding of special counsel. Arguments will start from lawyers for both sides. Then third parties will address the court, followed by rebuttals from the government and defense and if necessary, the court will hear any presentation of evidence.

June 24: Also in Fort Pierce, the Court will hear argument on the following:

— Morning: Trump’s motion to dismiss the indictment based on the purported unlawful appointment and funding of Smith as special counsel.
— Afternoon: Special counsel’s motion to modify Trump’s conditions of release over the former president’s public remarks alleging the FBI posed a threat to him during its search for classified documents at Mar-a-Lago.

June 25: Arguments on Trump’s motion related to the FBI’s Mar-A-Lago search and an alleged unlawful piercing of attorney-client privilege. Argument will focus primarily on the privilege / work product issues raised in the motion, which will be heard in sealed session to protect potentially privileged information and grand jury material.

July 11:  In New York, Trump is to be sentenced by Acting New York State Supreme Court Justice Judge Juan Merchan after a jury convicted the former president on 34 felony counts of falsifying business records.

July 22: In the documents case, a morning status conference and a closed afternoon hearing regarding classified materials.

Unscheduled: Date for the start of the documents trial.

About The Author
Citizens United