Judge in Trump classified documents case to hear arguments over Jack Smith’s appointment as special counsel

washington — Special Counsel Jack Smith and attorneys for former president Donald Trump will be back in a Florida federal court on Friday to begin three days of hearings to discuss, among other issues, whether Smith should be allowed to prosecute Trump.

The former president challenged the appointment and financing of the special advisor and argued in February filings that Smith “does not have authority to prosecute this action.” Trump’s legal team employed a legal theory that was rejected by the courts in attempts oppose other independent Justice Department investigations. Trump’s lawyers say Attorney General Merrick Garland did not have the constitutional authority to appoint Smith, arguing that a special counsel must be appointed by the president and approved by the Senate.

District Court Judge Aileen Cannon took the unusual step of inviting outside groups to argue each side of the issue before the court. Former federal prosecutors and elected officials filed a petition in support of Smith’s nomination and urged her to quickly rule against Trump to avoid what they said were unnecessary hearings on the matter. The group includes former Justice Department officials who served under Republican presidential administrations and a former Republican member of Congress.

On the other hand, former U.S. Attorneys General Edwin Meese and Michael Mukasey, who served as attorneys general in Republican administrations, wrote to bolster Trump’s challenge. They said that “almost all” special prosecutors in recent history were previously appointed by the sitting president and approved by the Senate as U.S. attorneys. Smith was “neither,” they wrote, a claim the group will present in court on Friday.

Trump’s team also challenged the funds the Justice Department uses to pay for special counsel investigations — an undefined pool of federal funds that special counsels are allocated by Congress to do their work.

In court filings earlier this year, special counsel defended his appointment and wrote that Congress authorizes the attorney general to hire prosecutors to lead independent investigations for the Justice Department. Smith’s appointment was sanctioned by special counsel regulations that govern the work of other investigations, including that of former special counsels Robert Mueller and John Durham, both appointed during the Trump administration, the prosecutors wrote.

“Attorneys general have long used these powers to appoint special counsels with Special Counsel-like responsibilities, with consistent support from Congress, the executive branch, and the courts,” Smith wrote.

Trump’s argument resembles a failed strategy that President Biden’s son, Hunter Biden, has tested in his attempt to dismiss two cases brought against him by another special counsel, David Weiss, who was appointed U.S. attorney for Delaware by Trump.

Prosecutors also argued that Trump’s claim that the special counsel is not properly funded “lacks merit” based on legal and historical precedent.

Cannon has not yet set a date for the case against Trump to go to trial and is still considering several legal challenges filed earlier this year. The former president is accused of misusing national defense information – including some of the federal government’s most confidential materials – after leaving office. He and two aides are also accused of involvement in an alleged scheme to obstruct the investigation of confidential records.

All three have declared himself innocent and denied any wrongdoing. None of the defendants will be required to attend the upcoming hearings, which will also deal with a proposal gag order about Trump’s speech.

Last month, the special counsel launched an attempt to limit Trump’s public comments about law enforcement in the case. Smith asked Cannon to amend the former president’s pretrial release conditions to prohibit him from making comments similar to those he has made in recent months about the case. Smith alleged that Trump “endangered law enforcement officials involved in the investigation and prosecution of this case and threatened the integrity of this process.”

Federal prosecutors took action to limit Trump’s public comments after he made false claims that FBI agents were “authorized to shoot” him while executing a court-authorized search warrant at his Mar-a-Lago residence in August 2022. Trump was not at Mar-a-Lago during the search, in which agents recovered more than 100 documents with secrecy markings as part of the federal investigation into the former president’s handling of confidential government records.

Smith alleged that Trump had “grossly distorted these standard practices, mischaracterizing them as a plot to kill him, his family and U.S. Secret Service agents.” Without offering specific cases, prosecutors wrote that Trump’s language “represents[s] a significant, imminent, and foreseeable danger to law enforcement officials” and must be reduced as a result.

Trump’s legal team pushed back and accused prosecutors of trying to limit the former president’s speech during the campaign.

Cannon is expected to consider his arguments in court Monday after hearing each side on the issue of Smith’s special counsel appointment.

On Tuesday, the judge will conduct a confidential hearing on issues of attorney-client privilege and in open court will hear arguments on evidentiary issues.

Smith also charged the former president with four counts amounting to an alleged conspiracy to illegally oppose the outcome of the 2020 presidential election. He has pleaded not guilty to those charges and the case is on hold while the Supreme Court considers his claims of presidential immunity from prosecution.

With the Supreme Court matter still pending and Cannon’s long pretrial schedule, the prospects of any of Smith’s cases against Trump going to trial before the presidential election diminish.