Trump-appointed judge will decide if special counsel Jack Smith is legally assigned in Mar-a-Lago case

Judge Aileen Cannon holds the first of several hearings to challenge the special counsel’s constitutionality

Alex Woodward
Friday 21 June 2024 15:12
Donald Trump speaks to supporters at his -Mar-a-Lago compound on June 5.
Donald Trump speaks to supporters at his -Mar-a-Lago compound on June 5. (AP)

Donald Trump’s classified documents case in Florida is moving ahead without any trial date in sight.

Instead, the federal judge presiding over the case has heard motion after motion from defense attorneys in their long-shot attempt to dismiss the charges against the former president and his co-defendants while attacking the prosecutors who brought the case against them.

On Friday, US District Judge Aileen Cannon — who was appointed to the bench by Trump — will hold a daylong hearing that questions the credibility of special counsel Jack Smith, and whether he was lawfully appointed under the Constitution.

The pretrial hearing is the first of five that Judge Cannon has scheduled over three days. Trump is not required to attend.

In a rare move, she is allowing nonparties in the case to argue inside the courtroom on Friday, rather than in briefs submitted to the court.

The judge will hear from Josh Blackman with the conservative Landmark Legal Foundation as well as Gene Schaerr, who represents right-wing Citizen United legal advocacy group and a Heritage Foundation-linked group of former Republican attorneys general.

The attorneys are arguing in support of Trump’s motion to dismiss the charges against him by claiming that Smith was unconstitutionally appointed.

In a motion to argue in support of Trump, the groups claimed that the Supreme Court “will take a keen interest” in the judge’s decision, signaling that a challenge at the nation’s highest court could follow, further prolonging a trial over Trump’s allegedly unlawful retention of classified materials at his Mar-a-Lago compound.

Trump-appointed Judge Aileen Cannon holds a hearing at the Alto Lee Adams Sr. United States Courthouse in Fort Pierce, Florida on June 21.
Trump-appointed Judge Aileen Cannon holds a hearing at the Alto Lee Adams Sr. United States Courthouse in Fort Pierce, Florida on June 21. (Getty Images)

Judge Cannon also allowed one constitutional law expert, Matthew Seligman with Stanford’s Constitutional Law Center, to defend Smith’s appointment on behalf of a group of former federal officials and US attorneys, legal scholars and pro-democracy advocates.

It is highly unusual for a federal trial judge to allow third parties who are not affiliated with the case to argue in court as part of the defendant’s challenge to the case itself.

The judge’s decision to allow those so-called amici or “friends of court” to argue in the courtroom — and not just in court filings — signals that she could be compelled to disqualify Smith and dismiss the case against Trump based on their arguments.

Next week, Cannon will hear more arguments challenging Smith’s appointment, including how Smith’s office has been funded, another line of attack from conservative legal groups.

The former president and his legal team have pushed for delays in all his criminal proceedings in an effort to avoid a trial during the 2024 presidential campaign and, ultimately, after the election, in the hopes of challenging the constitutionality of holding any trial at all if he is elected president.

If he returns to the White House, he could try to force the Department of Justice to drop the two federal cases against him, and pressure officials in Georgia to stop the prosecution of his election interference case in that state.

US district judge Aileen Cannon
US district judge Aileen Cannon (Southern District of Florida)

Cannon has been roundly criticized for a series of decisions that have been favorable to Team Trump and for appearing to slow-walk the case to help him avoid a trial before the 2024 election.

More than 1,000 complaints about the judge were submitted to a court that oversees her Florida district within one week last month.

The hearing on Friday also comes one day after The New York Times revealed that more experienced judges had urged her to hand the case off to another jurist — advice that she ignored.

The former president faces 40 separate charges stemming from allegations that he withheld hundreds of classified documents after leaving the White House for his private Mar-a-Lago compound in Florida, then conspired to obstruct government attempts to retrieve them.

He has pleaded not guilty.

His co-defendants Walt Nauta and Carlos De Oliveira, who are accused of helping Trump mishandle documents at the Florida property, have also pleaded not guilty.

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