Trump defense, prosecutors enter Round 2 in fight over legitimacy of Special Counsel Jack Smith
A government bid to restrain former President Donald Trump from publicly attacking FBI agents who searched his Mar-a-Lago estate for classified documents will be part of a series of pretrial hearings now under way.
FORT PIERCE — At the end of last Friday’s opening round of hearings over the legitimacy of Special Counsel Jack Smith’s appointment in the government’s classified documents case against former President Donald Trump, U.S. District Judge Aileen Cannon called the exchanges “very illuminating and helpful.”
The colloquium-styled dialogue is scheduled to continue Monday morning, as the judge is scheduled to hear more arguments over Smith’s appointment, this time on whether the origin of his compensation is legal.
Trump’s defense lawyers have filed multiple motions not only to dismiss the case but to delay it until after the presidential election. While many judges expedite decision-making on most dismissal criminal cases, Cannon has delayed rulings on many of the filings tendered by Trump, holding hearings on many of them. This has raised a chorus of objections from legal community critics who assert she is “slow-walking” the case to accommodate the former president, who did not appear at last Friday’s hearing and is not expected to be in court Monday or Tuesday, just days ahead of his scheduled nationally televised debate against President Joe Biden.
Defense lawyers, by raising questions about the validity of Smith’s appointment, have hit a rhetorical sweet spot for consuming more time to delay a trial once scheduled for May 20 but now on hold. The legal history of presidential administrations appointing special counsels dates back to 1875 and the administration of Ulysses S. Grant. In the succeeding decades, the legal language for authorizing them has varied about as much as the reasons for naming them.
The controversies, among others, have included scandals over whiskey tax revenue, government petroleum reserves, the Watergate burglary that led to the end of Richard Nixon’s presidency, the illegal arms sales case known as Iran-Contra during Ronald Reagan’s presidency, and a land deal inquiry that morphed into the disclosure and investigation of a sex scandal involving President Bill Clinton.
More recently, special counsels have probed Russian involvement in the 2016 presidential election, conducted an investigation of that investigation by Robert Mueller III, and examined the handling of classified documents by President Joe Biden as well as the illegal activities of his son, Hunter.
During arguments before Cannon on Friday, Trump’s defense lawyers aided by outside attorneys invited by the judge — known as friends of the court — jumped at the chance to pick at the arcane laws and regulations authorizing the special counsel appointments over the years.
The judge noted that other courts had established precedents that support the naming of Smith by Attorney General Merrick Garland.
“What do you make of this potentially tolerated practice?” Cannon asked Gene Schaerr, an outside attorney who represented two former Republican attorneys general including Edwin Meese, who served Ronald Reagan.
Schaerr suggested that those including judges who green-lighted previous special counsel appointments had erred.
“It’s an imperfect world, and people make mistakes,” he said. “And just because other people have made mistakes doesn’t mean this court should too.”
Cannon did not indicate when she would rule on the special counsel authorization.
Gag order, attorney-client privilege
Between Monday afternoon and the end of Tuesday, arguments on other grounds for dismissal line up this way:
The court will turn to the government’s effort to change the condition’s of Trump’s release by restraining him from making inflammatory statements about FBI agents who searched the former president’s Mar-a-Lago estate for classified documents in November 2022.
Over the weekend, the government filed a sharply worded supplemental argument to a previous one seeking a limited gag order from the court, reiterating that Trump’s statements placed the agents and even their families in danger.
“In late May 2024, defendant Donald J. Trump made a series of false and inflammatory public statements about the law enforcement professionals who conducted the court-authorized search at Mar-a-Lago, telling his audience that the FBI was out to kill him and his family,” wrote prosecutors led by Jay Bratt. “Trump knew that this was false, and he intended that his comments would inflame his listeners; indeed, that was the whole purpose. Comments like those create an immediate threat to the safety of law enforcement professionals — men and women who dedicate themselves to enforcing the law and protecting the American public every day, and who are entitled to do their work without fear of violent retribution.”
“Rather than address the risk of harm that his recent false statements created, Trump’s opposition [to a gag order] focuses on his political campaign and the timing of campaign events,” the prosecutors wrote. “But the Government has absolutely no interest in those matters. None.”
The prosecutors argued that the restraint they seek “is exceedingly narrow, focused and fully consistent with the First Amendment.”
“This is a pending criminal case, and ‘like any other criminal defendant, Mr. Trump does not have an unlimited right’ to engage in speech that poses a risk to witnesses and threatens the integrity of the proceedings,” the prosecutors added.
On Tuesday, Judge Cannon plans to hear arguments about the Palm Beach search and Trump’s allegation that the government prosecutors violated attorney-client privilege during the document retrieval process at Mar-a-Lago.
This is a developing story, so check back for updates. Click here to have breaking news alerts sent directly to your inbox.