Judge presses prosecutor over special counsel's 'legitimacy' in Trump classified documents case

David Lyons, South Florida Sun Sentinel on

Published in Political News

FORT PIERCE, Fla. — Defense lawyers for Donald Trump on Friday launched a three-day bid to derail the Justice Department’s classified documents case against the former president by effectively placing the legitimacy of special counsel Jack Smith’s appointment and suggesting at one point that the department may be close to operating a “shadow government” by using specially appointed prosecutors.

A long-standing Trump motion questioning Smith’s appointment is among multiple efforts by the defense to dismiss an indictment brought in June 2023 that the ex-president left office in 2021 with large numbers of classified documents that did not belong to him. Along with two employee co-defendants, he is also charged with obstructing government efforts to retrieve the documents from his Mar-a-Lago estate in Palm Beach.

Neither Trump nor the co-defendants — personal valet Waltine Nauta and property manager Carlos De Oliveira — appeared in court Friday. Their absence left the streets outside the Alto Lee Adams, Sr. United States Courthouse devoid of the dozens of supporters who normally rally on his behalf when Trump appears in court.

But there were newcomers who appeared in court Friday — namely third-party lawyers allowed by U.S. District Judge Aileen Cannon to present legal arguments over the special counsel issue on behalf of Trump and the prosecution team. Attorneys from two conservative legal organizations, including one headed by former Attorney General Edwin Meese Jr., who served under President Ronald Reagan, argued for Trump. A single lawyer appeared on behalf of law professors, former attorneys general and governors supporting the government position.

The “shadow government” reference was made by Trump attorney Emil Bove, who has assisted New York attorney Todd Blanche in the Florida documents case and the business records fraud case in New York where a jury found Trump guilty of 34 felony counts.

“That sounds very ominous,” Cannon told Bove. “But what do you really mean?”

Bove did not elaborate, but reiterated that Smith was improperly appointed and that there should be another hearing to include issues such as the relationship between U.S. Attorney General Merrick Garland and Smith, and the independence of Smith.

Cannon noted Smith still must adhere to a set of Justice Department rules, but the defense lawyer insisted Smith lacks supervision,

Prosecutors countered there was nothing improper or out of the ordinary about Smith’s appointment, with government lawyer James Pearce defending the government’s conduct under sharp questioning from Cannon at the end of the day.

“We are following all of the rules of the Justice Department,” he said. “We have complied with all of the department’s policies.”

Cannon did not issue any ruling Friday. She is not expected to reach a decision until after a second segment of the special counsel arguments concerning financial appropriations are concluded on Monday. As the Friday hearing ended, she placed Pearce on the defensive with questions about what oversight role Attorney General Merrick Garland — who appointed Smith — had in seeking the indictment against Trump.

She also wanted to know what consultations the attorney general might have participated in with the special counsel’s office before charges were brought.

Pearce said he was not in a position to answer. But he also replied: “I don’t want to make it seem like I’m hiding something.”

The discussion on Friday ranged from the question of who acts as Smith’s boss to decades-old precedents involving previous special prosecutors.

Smith’s team has insisted that Garland, as head of the U.S. Justice Department, was empowered to appoint Smith and to delegate prosecutorial decisions to him.

Lawyers noted that the history of using special counsels dates back to 1870 during the administration of President Ulysses S. Grant, whose term was marred by the so-called Whiskey Ring scandal involving distillers, IRS agents and Treasury clerks.

Subsequent administrations used them to deal with other corruption cases including bribery and bid rigging at the U.S. Post Office in the 1880s, and the Teapot Dome oil scandal of the 1920s.


Lawyers arguing on behalf of Trump argued that throughout the years, regulatory language authorizing special counsels had been vague and imprecise, and that judges had given administrations a pass when appointments were challenged.

The Trump defense argues that Smith was illegally appointed in November 2022 by Garland because he was not confirmed by Congress and the special counsel office that he was assigned to lead was not created by Congress.

Prosecutors note a similar argument failed in a challenge to the appointment of Special Counsel Robert Mueller, picked by the Trump administration Justice Department to probe possible links between Russia and Trump’s 2016 campaign.

The arguments before Cannon unfolded a day after The New York Times reported that the judge was reportedly asked by two other Southern District of Florida judges to step aside from the case in favor of a more experienced jurist. Cannon was said to have rejected the suggestions, according to anonymous attorneys quoted by newspaper.

On Tuesday, Cannon is scheduled to hear arguments on whether a federal judge in Washington, D.C., improperly allowed testimony from one-time Trump lawyer Evan Corcoran, under a crime-fraud exception to attorney-client privilege. Smith has alleged Trump misled the lawyer during his bid to obstruct the government’s investigation.

Trump and his co-defendants have pleaded not guilty.

Critics of the judge assert that Cannon has effectively bought into a defense strategy of delaying a trial until after the November presidential election. She has conducted lengthy hearings on issues, they say, that most other judges would have quickly ruled upon after reviewing written motions filed with the court.

Instead, Cannon canceled a May 20 start date for a trial, declaring there is a myriad of pretrial issues to decide, including more than a half-dozen motions to dismiss, as well as a variety of disputes between Trump’s lawyers and the prosecutors over the handling of classified documents at trial.

Recently, the judge has rejected some dismissal motions, saying it is too early in the proceedings to consider them, or more appropriately presented as jury instructions.

The defense had challenged counts related to obstruction and false statements that they said were duplicative and prejudicial. But Cannon said in an order that “the identified deficiencies, even if generating some arguable confusion, are either permitted by law, raise evidentiary challenges not appropriate for disposition at this juncture, and/or do not require dismissal even if technically deficient, so long as the jury is instructed appropriately and presented with adequate verdict forms as to each Defendants’ alleged conduct.”

Previously the judge rejected other motions to dismiss, including one that suggested that Trump was authorized under the Presidential Records Act to keep the documents with him after he left the White House in 2021 and to designate them as his own.

Still, there are more third parties headed for Fort Pierce to opine on other issues, the latest being the government’s motion to impose a gag order against Trump from denouncing FBI agents in public over their search for documents at Mar-a-Lago.

Late Thursday, Cannon green-lighted a filing backing Trump by America First Legal, a Washington-based nonprofit foundation headed by former West Wing senior adviser Stephen Miller.

The foundation said in a filing with the court that it “has a special interest in protecting First Amendment liberties like those at issue in this case.”

“Most importantly,” the foundation added, it “writes to protect the freedom of a major party presidential candidate in the upcoming election to speak freely on matters affecting politics and government — core areas of First Amendment expression.”


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