FORT PIERCE, Fla. (AP) — The federal judge presiding over the case involving classified documents and former President Donald Trump is listening to arguments on Friday regarding an attempt by the defense to dismiss the indictment on the grounds that the prosecutor who filed the charges was improperly appointed.
The discussions about the legality of special counsel Jack Smith’s appointment are the starting point of a three-day hearing that will continue next week. This will further delay a criminal case that was initially scheduled for trial last month but has been delayed due to various legal disputes. The motion questioning Smith’s appointment and funding by the Justice Department is one of the many challenges to the indictment that the defense has raised since the charges were filed a year ago.
Despite efforts from Smith’s team to move forward with a prosecution that many legal experts consider to be the most clear-cut among the four against Trump, Friday’s arguments before U.S. District Judge Aileen Cannon will not focus on the allegations against the former president. Instead, they will revolve around regulations from decades ago governing the appointment of Justice Department special counsels like Smith. This reflects the judge’s willingness to consider defense arguments that prosecutors deem meritless, contributing to the indefinite postponement of a trial date.
Cannon, who was appointed by Trump, had already frustrated prosecutors before the indictment in June 2023 by granting a request from Trump to have an independent party review the classified documents taken from Mar-a-Lago. This decision was later overturned by a federal appeals panel. Since then, she has faced scrutiny for her handling of the case, including delays in issuing rulings and scheduling hearings on legally questionable claims, all leading to the unlikelihood of a trial before the upcoming presidential election in November. In March, prosecutors criticized her for asking both parties to create jury instructions and respond to a premise that Smith’s team called “fundamentally flawed.”
According to The New York Times, two judges, including the chief federal judge in the southern district of Florida, reportedly recommended that Cannon recuse herself from the case after she was assigned to it.
The hearing comes shortly after Trump was convicted in a separate case in New York for falsifying business records to conceal a payment to a pornographic actress. Also, the Supreme Court is expected to make a significant decision on whether Trump is immune from prosecution for actions taken during his time in office, or if Smith’s team can charge him for allegedly attempting to overturn the 2020 presidential election results.
The focus of Friday’s hearing is the Trump team’s claim that Smith’s appointment in November 2022 by Attorney General Merrick Garland was unlawful because it did not receive approval from Congress, and the special counsel office that he now leads was not created by Congress either.
Smith’s team argues that Garland had the authority as the head of the Justice Department to make the appointment and delegate prosecutorial decisions to Smith. Prosecutors also point out that past appointments of special counsels, such as Robert Mueller by Trump’s Justice Department, have been upheld by courts.
Next week’s agenda includes discussions on a limited gag order that prosecutors have requested to prevent Trump from making comments that could jeopardize the safety of FBI agents and other law enforcement personnel involved in the case.
These restrictions were requested after Trump falsely claimed that the agents who searched his Mar-a-Lago property for classified documents in August 2022 were willing to kill him, despite his statement being based on standard FBI policies about the use of force during search warrant executions. The FBI had purposely chosen a day for the search when Trump and his family were out of town.
Trump’s legal team argues that speech restrictions would violate his right to free speech. Initially, Cannon rejected the request on procedural grounds, stating that prosecutors had not adequately consulted with the defense before seeking the gag order. However, prosecutors later renewed their request.
Another issue to be addressed next week is a defense request to exclude evidence seized by the FBI during the Mar-a-Lago search from the case, as well as to dismiss the indictment due to evidence obtained from former members of Trump’s legal team.
While attorney-client privilege normally protects lawyers from being compelled to testify about confidential discussions with clients, prosecutors can overcome this protection if they can show that the legal services were used to further a crime.
This occurred in the classified documents investigation last year, as prosecutors in the indictment repeatedly referenced conversations between Trump and M. Evan Corcoran, an attorney representing the former president during the investigation. Corcoran was required by a judge to appear before the grand jury probing Trump.
Tucker reported from Washington.
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