U.S. District Judge Aileen Kanon will hold a hearing on the former president on Friday Donald Trump‘s motion to dismiss the secret documents indictment against him on the grounds that the special counsel Jac Smith‘s appointment was unconstitutional.
In federal court in Fort Pierce, Florida, Trump’s lawyers argued that an officer such as the special counsel should be appointed “by law” and that the special counsel should be categorized as a “principal officer” and subject to confirmation by the Senate. The legal text cited by the special counsel’s office does not “authorize” the attorney general’s appointment of the special counsel, argued his lawyer, Emil Bove.
Cannon appeared skeptical of some of the defense team’s arguments, including that the attorney general’s ability to appoint special counsel with the authority of a U.S. attorney is akin to “the power to appoint a shadow government.”
“That sounds very ominous, a shadow government. But what does that mean?” Kanon asked.
Bove said such an outcome would stem from the fact that the attorney general could appoint people with law enforcement authority without oversight.
“But is that really a realistic risk” when you have “well-defined statutes” regarding the attorney general’s appointment power? Cannon asked.
Cannon also asked about the history of the use of special counsel, independent counsel and special prosecutors, which in some cases dates back to the 19th century.
James Pearce argued for the special counsel’s office and refuted the idea that Smith’s appointment is unconstitutional. He said it ignores precedent, would have “pernicious consequences” and had already been resolved in U.S. v. Nixon, the Watergate-era case in which the Supreme Court ruled that then-President Richard Nixon used audio recordings and other evidence related to the scandal. Pearce argued that in the Nixon case, the courts ruled that the attorney general had the authority to appoint a special counsel with the authority to conduct independent investigations.
Pearce responded to Bove’s attempts to distinguish between officials and officers, arguing that “official” is a “collective term” for officers and employees.
He also outlined historical precedent, including the appointment of independent special counsels by Presidents Ulysses S. Grant and Theodore Roosevelt, before noting that Congress had long approved the practice of appointing independent special counsels.
Attorney General Merrick Garland appointed Smith special counsel in November 2022, tasking him with overseeing the federal investigation into Trump’s handling of classified documents after he became president and his efforts to overturn the results of the 2020 presidential election to make.
Friday’s hearing focused on a motion Trump’s lawyers filed in February claiming that the Constitution’s Appointments Clause “does not permit the Attorney General to appoint, without Senate confirmation, a private and like-minded political ally to exercise prosecutorial power in the United States. As such, Jack Smith lacks standing to prosecute this action.”
Trump’s lawyers wrote that “because neither the Constitution nor Congress created the office of ‘Special Counsel,’ Smith’s appointment is invalid.”
They also argued that funding Smith’s research violated the Constitution’s appropriations clause.
“President Biden’s DOJ is paying for this politically motivated prosecution of Biden’s chief political rival ‘off the books’ without accountability or consent,” their motion said. “Rather than funding the Office of the Special Counsel through the regular budget process, Jack Smith is using a permanent, indefinite appropriation that, by its terms and under the Reno regulations, is not available to the Special Counsel. Smith’s financing therefore violates the Credit Clause. “
Consequently, the court should dismiss the superseding indictment against him and the other two defendants in the case, Walt Nauta and Carlos De Oliveira, they said.
In response, the special counsel team argued that the attorney general has the legal authority to appoint “inferior officers” and that previous court decisions have affirmed the attorney general’s authority to appoint special counsel.
Trump’s legal team’s arguments have been made unsuccessfully against previous special counsels, including Robert Mueller and David Weiss.
Outside parties will also be able to present arguments in a Florida courtroom on Friday, with Trump’s teams and special counsel each having the opportunity to rebut if necessary. Three groups submitted a brief and were given permission to present.
The trial taking place Friday is one of three consecutive hearings Cannon is holding, with the others taking place on Monday and Tuesday.
A previous trial date in the case has been canceled and no future date has been set. The hearing comes just a few weeks after Trump was found guilty of 34 felony counts of falsifying corporate records, marking the first time a former president has been convicted of a crime.
This article was originally published on NBCNews.com
