FORT PIERCE, Fla. (AP) — The federal judge presiding over the case involving classified documents against former President Donald Trump will listen to arguments on Friday regarding a defense attempt to dismiss the indictment by claiming that the prosecutor who filed the charges was unlawfully appointed.
The discussions on the legality of special counsel Jack Smith’s appointment mark the beginning of a three-day hearing that is expected to continue into next week, causing further delays in the criminal case that was initially set for trial last month but has been delayed due to various legal disputes. The motion challenging Smith’s appointment and funding by the Justice Department is one of several challenges to the indictment raised by the defense over the past year.
While Smith’s team aims to move forward with a prosecution that legal experts consider the most straightforward among the four cases against Trump, Friday’s arguments before U.S. District Judge Aileen Cannon will not address the accusations against the former president. Instead, they will focus on regulations from decades ago that dictate the appointment of Justice Department special counsels like Smith. This highlights the judge’s willingness to consider defense arguments, which prosecutors claim are baseless, leading 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 for an independent reviewer to examine the classified documents seized from Mar-a-Lago — a decision that 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, making a trial before the November presidential election highly unlikely. In March, she was criticized by prosecutors for asking both parties to draft jury instructions and respond to a premise of the case that Smith’s team deemed “fundamentally flawed.”
According to The New York Times, two judges, including the chief federal judge in the southern district of Florida, reportedly urged Cannon to step down from the case after being assigned to it.
The hearing comes shortly after Trump’s conviction in a separate state case in New York for falsifying business records to cover up a payment to a porn actor. Additionally, the Supreme Court is expected to issue a significant ruling on whether Trump is immune from prosecution for actions taken in office or if he can be prosecuted by Smith’s team for alleged efforts to overturn the 2020 presidential election results.
The focus of Friday’s hearing is the claim by Trump’s team that Smith’s appointment in November 2022 by Attorney General Merrick Garland was invalid because it was not approved by Congress, and because the special counsel office he was selected to lead was not established by Congress. Smith’s team argues that Garland had the authority to make the appointment and delegate prosecutorial decisions to him. Prosecutors also cite previous court rulings upholding appointments of special counsels, including Robert Mueller’s appointment by the Trump Justice Department.
Next week’s agenda includes discussions on a limited gag order requested by prosecutors to prevent Trump from making comments that could jeopardize the safety of FBI agents and other law enforcement officials involved in the case. The request for restrictions was made after Trump falsely claimed that the agents who searched his Mar-a-Lago estate for classified documents in August 2022 were prepared to kill him, although he was referencing standard FBI policy regarding the use of force during search warrant executions. The FBI deliberately conducted the search when Trump and his family were out of town.
Trump’s legal team argues that any speech restrictions would violate his freedom of speech rights. Initially, Cannon rejected the request on procedural grounds, stating that prosecutors had not adequately consulted with defense attorneys before seeking the gag order. However, prosecutors later renewed the request.
Another topic to be addressed next week is a defense request to exclude evidence seized by the FBI during the Mar-a-Lago search and dismiss the indictment due to evidence obtained from former members of Trump’s legal team. While attorney-client privilege protects lawyers from being forced to disclose confidential conversations with clients, prosecutors can bypass this protection if they can demonstrate that the lawyer’s services were used to further a crime.
This scenario played out last year in the classified documents investigation, with the indictment referencing conversations Trump had with M. Evan Corcoran, an attorney who represented the former president and was compelled by a judge to testify before the grand jury investigating Trump.
Tucker reported from Washington.
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