Judge Aileen Cannon pushes Trump’s lawyer to defend claim that special counsel is part of a ‘shadow government’

Fort Pierce, Florida
CNN
 — 

District Judge Aileen Cannon appeared skeptical of Donald Trump’s arguments that Jack Smith’s appointment as special counsel didn’t meet constitutional requirements, but she also displayed what has been a common distrust of the prosecutors during a day-long session Friday.

Trump is arguing that Smith – who has brought charges against Trump in Florida and Washington, DC – was unlawfully appointed as special counsel.

At the center of Trump’s argument is the claim that the Attorney General Merrick Garland does not have legal authority to appoint someone as special counsel who hasn’t confirmed by the Senate. The Justice Department says the attorney general has ample authority to appoint “inferior officers,” which would include special counsels.

Cannon, prepared with question after question for both the defense attorney and prosecutors, on Friday pushed Trump’s lawyer to defend his claim that Smith’s position amounted to a “shadow government.”

“That sounds very ominous,” Cannon said to Trump attorney Emil Bove. “But what do you really mean?”

Bove did not directly answer the question, but he repeated the argument that Smith was inappropriately appointed. He also said that there should be an additional hearing over the issue, which could include testimony about the relationship between Garland and Smith, arguing that the two have said Smith is acting independently and not under the direction of Garland.

Cannon noted there is a regulatory system that Smith must still adhere to – to which Bove retorted that Smith still wasn’t reporting to anyone.

Cannon’s handling of the Trump case has been closely watched, as critics say she is taking too long to settle legal challenges from the former president, aiding his quest to delay any trial past the November election.

The New York Times reported Thursday that two federal judges in south Florida, including the district’s chief judge, urged Cannon to forgo overseeing the criminal prosecution when she was first assigned the classified documents case in 2023.

The judge, appointed in 2020, has peppered prosecutors with questions in hearings over recent months about aspects of the case that the Justice Department treats as routine. That includes the fact that prosecutors used a grand jury in Washington to conduct the classified documents investigation before moving the case to Florida’s southern district where she sits.

On Friday, that wariness extended to pressing the government lawyers to specify whether Garland personally approved the Trump indictment or any other specific actions by Smith.

Prosecutor James Pearce, during his arguments in the morning, said that Garland “could, this very moment” fire Smith, but he added later that Garland did not review all of Smith’s decisions.

“We are following all the rules,” Pearce argued.

“Has there been any actual oversight?” Cannon pressed.

Pearce said “yes” but declined to give details on internal deliberations in the Justice Department.

Cannon again pushed, suggesting prosecutors were experiencing “heartburn” over the question of whether Garland signed off on the indictment.

Pearce said that regulations require the special counsel’s office to report any major developments to the attorney general. Pearce said earlier that an indictment could certainly be considered a major development.

Cannon did not say when she would rule on the issue.

Trump’s attempt to nullify the special counsel’s office’s work is an anomaly among recent efforts from other defendants in different federal courts to do the same, because Cannon is giving far more time to weigh the challenge than other judges have in recent years.

The judge is allowing for several hours of questioning about the authority of the special counsel’s office, which is at work in federal court cases around the country, as Republican-led attacks of the Justice Department’s special counsel appointments gain steam on Capitol Hill and in legal circles.

The series of hearings will resume Monday with arguments over the prosecutors’ request for a gag order against Trump and the former president’s argument the special counsel is being unlawfully funded.

In addition to granting the hearing on the legitimacy of Smith’s office, attorneys representing non-profit groups and former government officials will join the in-person debate Friday, having been allowed by Cannon to file their own arguments on the matter. It is very unusual for outside parties to be given argument time like this, especially in a criminal case at the trial level.

In one filing in support of Trump’s motion to toss the case, attorneys for a former attorney general and the right-wing nonprofit Citizens United wrote that because of his appointment outside of the Senate’s review, Smith “is thus one of the most powerful officials in the entire United States Government.”

“By pursuing a former President of the United States who is currently the leading candidate to become the next President of the United States,” the group wrote, “Smith’s prosecution here shows that he wields the power to profoundly alter the trajectory of a presidential election, and with it the destiny of the Nation.”

Gene Schaerr, who represents former Attorney General Edwin Meese and Citizens United, argued that Smith’s appointment gave him more power than a US attorney “without political accountability.”

“Mr. Smith’s appointment severely undermines” the constitutional order, he said, arguing that special counsels must be already working in government and approved by the US Senate. Before taking the role as special counsel, Smith was a top prosecutor in the Hague, prosecuting war crimes.

In support of Smith and his appointment as special counsel, attorneys representing the nonprofit State Democracy Defenders and others argued in their own filing that the constitution differentiates between “principle” and “inferior” officers, allowing the AG to appoint the latter.

Another attorney, Matthew Seligman, who argued in favor of Smith, focused on claims that Smith was fully independent from the Justice Department.

“There’s sufficient direction here,” Seligman told the judge of the oversight from Garland, citing the regulations that govern special counsels.

He added the oversight was “a more hands-off approach” but noted that the attorney general could fire Smith if he didn’t approve of his work.

In his two federal cases, attorneys for Hunter Biden also argued the indictments against him should have been dismissed because the special counsel overseeing the cases was, they argued, unlawfully appointed.

Almost inverse from Trump, Biden argued that special counsel David Weiss was unlawfully appointed because he was already in the federal government and therefore not fully independent.

His motions for dismissal were struck down by the two judges overseeing his cases.

This story has been updated with additional developments.