Trump’s secret documents lawyers continue to question the prosecutor’s appointment

By Eric Tucker and Adriana Gomez Licon, Associated Press

Updated: 1 a day ago Published: 1 a day ago

FORT PIERCE, Fla. — Donald Trump’s lawyers made a bold argument Friday that the Justice Department prosecutor who accused the former president of collecting secret documents at his Florida estate was illegally appointed and that the case should therefore be dismissed.

A challenge to the legality of special counsel Jack Smith’s appointment set off a three-day hearing that is scheduled to continue next week and cause further delays in a criminal case that was scheduled to go to trial last month but has been marred by a slew of unresolved legal wrangling. The motion challenging Smith’s selection and funding by the Justice Department is one of many challenging the indictment filed by the defense, so far unsuccessfully, in the year since the charges were filed.

U.S. District Judge Aileen Cannon heard several hours of arguments from lawyers on both sides on Friday, and Trump lawyer Emil Bove at one point asserted that the Justice Department could create a “shadow government” by appointing special advisers. Prosecutors say there was nothing inappropriate or unusual about Smith’s appointment. Cannon did not immediately issue a ruling, but in an unusual move, he agreed to hear arguments from legal experts not involved in the case later in the day.

While Smith’s team intends to pursue a criminal case seen by many legal experts as the most straightforward and straightforward of the four cases against Trump, Friday’s arguments do not address the charges against the former president. Instead, they will focus on decades-old rules governing the appointment of Justice Department special counsels like Smith, reflecting the judge’s constant willingness to heed defense arguments that prosecutors say are frivolous and meritless, contributing to the indefinite cancellation of trials.

Cannon, a Trump appointee, irritated prosecutors even before his June 2023 indictment by granting Trump’s request for an independent arbitrator to review secret documents taken from Mar-a-Lago – an order that was overturned by a unanimous federal appeals panel.

Since then, she has faced close scrutiny for her handling of the case, including months of rulings and scheduling hearings on legally specious claims – all of which have made it virtually impossible to litigate before November’s presidential election. . In March, prosecutors reprimanded her after she asked both sides to formulate jury instructions and respond to case assumptions 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 in the Southern District of Florida – urged Cannon to remove herself from the case shortly after she was assigned.

The trial comes just weeks after Trump was convicted in a separate state case in New York of falsifying business records to conceal a secret payment of money to a porn actor who claimed she had sex with him. Meanwhile, the Supreme Court is expected to issue a landmark opinion within days on whether Trump is immune from prosecution for actions he took while in office, or whether he can be prosecuted by Smith’s team on charges that he planned to overturn the results of the 2020 presidential election.

At issue during Friday’s hearing was the Trump team’s claim that Smith was illegally appointed in November 2022 by Attorney General Merrick Garland because he did not first obtain congressional approval and because the office of special counsel to which he was assigned was not also created by Congress .

Smith’s team found that Garland, as head of the Justice Department, had full authority to appoint him and delegate prosecutorial decisions to him. They note that a similar argument failed in a challenge to the nomination of special counsel Robert Mueller, who was tapped during the Trump administration to investigate potential ties between Russia and the 2016 Trump campaign.

On next week’s agenda is arguments over a limited silence order that prosecutors sought to bar Trump from comments they say could threaten 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 secret documents in August 2022 were ready to kill him, even though he invoked standard language in FBI policy regarding the use of force during a search guarantees. The FBI deliberately chose the day of the search when it knew Trump and his family would be out of town.

Trump’s lawyers say any restrictions on his speech will violate his right to free speech. Cannon initially denied the request on a technicality, saying prosecutors did not sufficiently consult with defense attorneys before requesting the silence restrictions. However, prosecutors renewed their request.

Another issue that will be discussed next week is the defense’s request to exclude from the case evidence seized by the FBI during the Mar-a-Lago search and to dismiss the indictment because it contained evidence from former members of Trump’s defense team.

Although attorney-client privilege protects defense attorneys from being forced to testify about confidential conversations with clients, prosecutors can circumvent this barrier 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 secret documents investigation, where prosecutors in their indictment repeatedly cited details of Trump’s conversations with M. Evan Corcoran, a lawyer who represented the former president during the investigation and who was forced by a judge to appear before a grand jury jury examining Trump.

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Tucker reported from Washington.