Smith’s team called that argument “unsound” and said Garland has clear authority to appoint lawyers to fulfill Justice Department functions. Similar challenges to other recent special counsels, including Robert S. Mueller III, have been rejected in court.
Trump’s attorney said at the hearing that there are differences in the legal arguments they were making vs. the rejected ones made in D.C. around the Mueller appointment.
U.S. District Judge Aileen M. Cannon seemed skeptical.
“The District court in D.C. did a fairly comprehensive review,” Cannon said.
The pretrial hearing is the first of five Cannon has scheduled over three days. Multiple sessions are scheduled for Monday and Tuesday, including one on whether Smith’s position is legally funded. The hearings reflect Cannon’s tendency to allow in-person argument on many of the small and incremental legal questions she must decide, creating a backlog of key decisions and delaying the start of Trump’s trial.
It’s common for defense lawyers to file every motion they can to dismiss or delay cases against their clients. But judges will typically rule on many of them without holding hearings, which are usually reserved for only the biggest and most viable motions.
On Friday, Trump attorney Emil Bove argued that Garland has repeatedly said Smith is acting independently — which Bove claimed would make Smith a “principal officer” who needs to be approved by the Senate.
James Pearce, an attorney on the special counsel team, said there are plenty of Justice Department officials who are not Senate confirmed but have the authority to make big decisions. He said adopting the defense’s theory would have “pernicious consequences.”
Cannon, who asked detailed questions of the government and defense throughout the morning portion of the hearing, seemed interested in the idea of how independently Smith has operated as he prosecutes the case.
She asked whether Garland would have reviewed the indictment against Trump before it is filed. Pearce responded that the special regulations call for the attorney general to review significant decisions in case, which would probably include an indictment.
Three outside attorneys are expected to argue about the legality of Smith’s appointment this afternoon — reflecting an unusual decision by Cannon to allow such participation for this type of proceeding.
While Cannon has largely ruled against Trump’s motions in the case so far, the timing of her decisions has favored the former president, who has argued that any trial should occur after the November presidential election in which he is the presumptive Republican candidate.
The judge, a Trump nominee who has been on the bench since late 2020, has indefinitely postponed Trump’s trial from its original May start date. While both the prosecution and defense lawyers told her months ago they could be ready for trial by August, she has allowed motions to pile up and is going through them slowly, making it unlikely that the trial could happen before the election.
Trump, who did not attend Friday’s hearing, faces dozens of counts of allegedly mishandling classified information after his presidency ended and plotting with two aides to obstruct government efforts to recover the material from Mar-a-Lago, his Palm Beach, Fla., home and private club. He has pleaded not guilty.
Smith is also overseeing the separate federal case charging Trump in D.C. over his efforts to overturn the results of the 2020 election. That case is on pause while the Supreme Court settles the question of whether presidential immunity from criminal prosecution extends to the allegations that federal prosecutors have laid out against him in the D.C. indictment. A decision from the nation’s highest court is expected next week or in early July.
Trump separately faces a state case in Georgia over allegations that he attempted to overturn the 2020 election results in the state. That case is on pause as an attempt to disqualify the prosecutor in the case makes its way through the state appeals courts.
Last month, a New York jury convicted Trump of violating state laws when he falsified business records to cover up a hush money payments to a porn actress to influence the 2016 presidential election.
In a separate hearing Monday, Cannon is scheduled to hear arguments on a request from prosecutors to restrict Trump from making any further incendiary claims that falsely suggest that FBI agents were “complicit in a plot to assassinate him.”
On Tuesday, Trump’s attorneys will try to convince Cannon to disqualify the use at trial of audio notes that investigators obtained from one of his attorneys, Evan Corcoran.
Trump has said attorney-client privilege should apply to these recordings, which include important potential evidence about his alleged obstruction of government efforts to retrieve the highly classified material from Mar-a-Lago. Prosecutors argue that the audio notes are exempt from that privilege because of the crime-fraud exception, which says communications that may have been part of committing a crime may not be shielded. A federal appeals court in D.C. agreed with that argument last year and required Corcoran to turn over to prosecutors his notes and other evidence.
Also on Tuesday, Cannon will consider Trump’s request for what is known as a Franks hearing. That’s a hearing to determine if investigators falsified aspects of the affidavit they used to obtain a search warrant for Mar-a-Lago and, if so, whether the evidence collected when executing the warrant should be excluded from trial.
Trump has argued that investigators misled the judge who approved the warrant on at least four instances — including by not mentioning that Trump, like all presidents, did not have a formal security clearance — and that he had lawful access to the classified materials while he was in office.
There is usually a high legal threshold to hold a Franks hearing. Cannon said she will schedule one at a later date if she determines it is warranted.
This is a developing story. It will be updated.
