Judge in Trump's classified documents case hears arguments over Jack Smith's appointment

FORT PIERCE — The federal judge overseeing Donald Trump's classified documents case entertained more debate Friday over whether to dismiss the charges against him. Trump's attorneys argued that Jack Smith, the special counsel who brought the charges against the former president, was illegally appointed.

Trump attorney Emil Bove told U.S. District Judge Aileen Cannon that U.S. Attorney General Merrick Garland lacked the statutory authority to make such an appointment. The argument resembles a strategy that President Joe Biden's son, Hunter, tried unsuccessfully to use to dismiss two cases filed against him by another special counsel.

Smith's team maintains that Garland was fully empowered as the leader of the Justice Department to appoint Smith and to delegate prosecutorial decisions to him. They rejected Bove’s suggestion Friday that Smith is representative of a “shadow government” consisting of independent actors tapped by the Biden administration to operate without official oversight.

Cannon appeared unmoved by the "shadow government" argument. She said it "sounds very ominous" but questioned whether it was a "realistic risk." She adjourned Friday’s hearing at the Alto Lee Adams Sr. U.S. Courthouse without immediately ruling on Trump’s motion.

Who is Aileen Cannon? What to know about Trump-appointed judge overseeing the classified documents case

The question of Smith's legitimacy is one of several legal challenges to the indictment Trump's attorneys have raised. So far, none has persuaded Cannon to toss the case, but they have succeeded in postponing the trial indefinitely.

Friday's was the first in a series of hearings that will continue into next week. The back-to-back proceedings concern a slate of other unresolved pretrial issues, including a potential gag order to restrict Trump's comments about the case. Smith's team asked Cannon to issue the order after Trump claimed that agents who searched his Mar-a-Lago estate in Palm Beach for classified documents were prepared to kill him.

Cannon initially rejected the request on a technicality, admonishing prosecutors for not sufficiently conferring with Trump's legal team before seeking the gag order. Prosecutors subsequently renewed the request.

They argue that Trump's comments could endanger the lives of FBI agents and other law-enforcement officials involved in the case. Trump's lawyers say that any restriction would infringe on his freedom of speech.

'Calm down': Classified documents hearing sees strained exchange between judge, prosecutor

Cannon will also hear arguments next week over a defense motion to exclude evidence seized by the FBI during the Mar-a-Lago search, as well as another motion to dismiss the charges. Some Trump critics and legal analysts have questioned Cannon's continued willingness to hear defense arguments which prosecutors say are "meritless."

The New York Times reported Thursday that two judges — including the chief federal judge in the Southern District of Florida — urged Cannon to step down from the case after she was randomly assigned to oversee it. Cannon, who Trump appointed to the federal bench in January 2020, declined to do so.

She has been heavily scrutinized over her handling of the case since she was selected to oversee it, both for taking months to issue rulings and for entertaining dubious legal claims — all of which make a trial before the presidential election in November unlikely.

Cannon has not hinted at a potential trial date since she postponed it in May. Prosecutors have suggested that it could begin in early July, while Trump’s lawyers have argued it should start no earlier than August. The Republican National Convention is scheduled for July 15-18 in Milwaukee.

Trump and two aides, accused of hoarding classified documents at his Mar-a-Lago estate, have pleaded not guilty to all charges against them.

Neither Trump nor the aides, Walt Nauta and Carlos De Oliveira, appeared at the courthouse Friday.

Hannah Phillips is a journalist covering public safety and criminal justice at The Palm Beach Post. You can reach her at hphillips@pbpost.com.

This article originally appeared on Palm Beach Post: Hearing on Trump bid to toss classified documents case over Jack Smith