FORT PIERCE, Fla. – The federal judge is watching Donald Trump‘s classified documents case has sought a special counsel Jac Smith‘s prosecutors Friday on how closely Attorney General Merrick Garland supervises their work.
Under continued questioning by U.S. District Judge Aileen Cannon, prosecutors declined to release details and appeared overwhelmed by the investigation. At one point, Smith deputy James Pearce said he was “not authorized” to discuss the level of communication between the attorney general and the special counsel.
“I don’t want to give the impression that I’m hiding anything,” Pearce said at the time.
The questioning came at the end of a five-hour hearing focused on a long-running effort by Trump to have the charges against him dismissed. Smith has accused Trump of hoarding national secrets at his Mar-a-Lago estate after his presidency and obstructing the administration’s efforts to retrieve them.
Trump argues that Garland’s appointment of Smith as special counsel in November 2022 is unconstitutional and that Smith did not have the legal authority to bring the case against the former president.
While other courts have uniformly dismissed similar challenges to the validity of special counsel appointments, Cannon — a Trump appointee to the court in 2020 — scheduled lengthy oral arguments on the issue, a sign that she was taking the issue seriously. During Friday’s proceedings, she gave few indications of how she plans to govern.
The Justice Department typically appoints special counsel to oversee cases where the department’s leadership may have a conflict of interest. Under DOJ regulations, special counsels report to the attorney general but have more independence than other federal prosecutors.
Trump has publicly claimed, without evidence, that Smith is essentially a pawn of President Joe Biden. But in court, his lawyers make an opposing argument: that Smith’s independence means he operates outside the bounds of what DOJ employees are allowed to do. Under the Constitution, only an official appointed by the president and confirmed by the Senate can exercise the level of power that Smith has, Trump’s lawyers argue. For decades, special counsels have not been appointed by the president or confirmed by the Senate.
In questioning prosecutors about Garland’s supervision, Cannon appeared to be trying to determine how much independent authority Smith has in practice.
Before the judge asked her questions, Trump attorney Emil Bove pointed out that Garland had said he had “no coordination” with Smith in the other criminal case Smith filed against the former president: allegations alleging that Trump tried to influence the election of 2020 to be undone.
Smith’s team, led by Pearce, sharply refuted arguments that Smith’s appointment was illegal and described Smith’s role as an uncontroversial exercise of Garland’s ability to organize the Justice Department as he saw fit. Pearce emphasized that Smith was “in compliance” with longstanding Justice Department rules and regulations regarding his appointment and his handling of the case.
The exchanges marked the start of a three-day series of intense hearings convened by Cannon that will continue Monday and Tuesday. Monday’s hearing will focus on another aspect of Trump’s effort to invalidate Smith’s nomination — a claim that he is improperly funded by an unspecified Justice Department budget item.
The judge’s intense dive into an issue that has been sidelined by most other courts has raised concerns within the legal community and renewed criticism of her handling of the sensitive case. Adding to the unusual dynamic, Cannon allowed three outside experts — two in favor of Trump’s position and one in favor of Smith’s — to address the court for 30 minutes each, which is almost unheard of in criminal cases.
Cannon alarmed legal experts from across the ideological spectrum in 2022 when she dropped the Justice Department’s investigation into Trump’s retention of classified documents shortly after the FBI searched Mar-a-Lago. Her decision drew a sharp rebuke from a conservative panel of the 11th Circuit Court of Appeals, allowing the investigation to proceed. The Supreme Court declined to hear Trump’s appeal.
After Smith indicted Trump in June 2023, Cannon was randomly assigned to preside over the case. She has moved slowly on many pretrial matters, some of which were routine, and she has postponed the trial date indefinitely.
Trump’s lawyers spent much of the day arguing that Smith’s surgery should not go forward. Bove claimed that the special counsel’s retention amounted to a “shadow government.”
Cannon responded, “That sounds very ominous,” and asked what Bove meant. Bove suggested it is a “risk we are taking” by allowing an official who is not confirmed by the Senate to take the actions Smith is taking.
During the hearing, Cannon asked attorneys for both sides — as well as the three outside experts she was allowed to argue — about their positions on several federal statutes affecting the Justice Department, as well as the long history of using special prosecutors and defense attorneys.
A key moment in that history is the famous Supreme Court ruling, which ordered then-President Richard Nixon to hand over the tapes to a special prosecutor investigating the Watergate break-in. Cannon wanted to know if the part of that ruling dealing with the special counsel applied to Smith’s appointment.
Attorneys for Smith said that ruling, and several others at the appellate court level, established a binding precedent that upheld Smith’s appointment. Trump’s team disagreed.
Fineout reported from Fort Pierce. Cheney reported from Washington.
