The judge in Donald Trump’s classified documents case asked lawyers how much independence the special counsel has.
Judge Aileen Cannon held a hearing on a bid by Trump to have Jack Smith's appointment declared unconstitutional. | J. Scott Applewhite/AP; Southern District of FloridaFORT PIERCE, Florida — The federal judge overseeing Donald Trump’s classified documents case grilled special counsel Jack Smith’s prosecutors Friday on how closely Attorney General Merrick Garland oversees their work.
Trump contends that Smith’s appointment by Garland as special counsel in November 2022 is unconstitutional and that Smith lacked the legal authority to bring the case against the former president. Trump has publicly claimed, without evidence, that Smith is essentially a pawn of President Joe Biden. But in court, his lawyers are making a contrary argument: that Smith’s independence means he’s operating beyond the limits of what DOJ employees are permitted to do. Under the Constitution, only an officer appointed by the president and confirmed by the Senate can wield the level of power that Smith has, Trump’s lawyers claim.
Smith’s team, led by Pearce, sharply rebutted arguments that Smith’s appointment was illegal and described Smith’s role as an uncontroversial exercise of Garland’s ability to organize the Justice Department as he sees fit. Pearce emphasized that Smith was “in compliance” with longstanding Justice Department rules and regulations regarding his appointment and his handling of the case.
Cannon alarmed legal experts across the ideological spectrum in 2022 when she paused the Justice Department’s investigation of Trump’s retention of classified documents shortly after the FBI searched Mar-a-Lago. Her decision earned a sharp rebuke from a conservative panel of the 11th Circuit Court of Appeals, which permitted the probe to advance. The Supreme Court declined to take up Trump’s appeal.
Cannon responded, “That sounds very ominous,” and asked what Bove meant. Bove suggested it was a “risk we are running” by allowing an official not confirmed by the Senate to take the actions Smith is taking.
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