Former President Donald Trump has contended that Special Counsel Jack Smith was unlawfully appointed and lacks the authority to prosecute him in the classified documents case in South Florida.
District Judge Aileen Cannon has scheduled a hearing on this issue for June 21, allowing three groups of legal scholars to participate in oral arguments, a rare move.
Two of the groups have backed Trump’s motion to dismiss, while the third has supported Smith’s appointment by Attorney General Merrick Garland.
On May 7, as part of an order that indefinitely delayed a trial in the classified documents case, Judge Cannon set June 21 as the date for a hearing on former President Trump’s motion to dismiss based on the unlawful appointment and funding of special counsel, and included a footnote that said, “Any amici wishing to present oral argument during this hearing must seek leave of Court to do so no later than June 3, 2024.”
The three outside groups all met that June 3 deadline, which prompted a June 4 paperless order on the docket from the judge that approved the appearance of designated representatives at the June 21 hearing and allotted each of them 30 minutes to make their arguments.
In a June 5 order, Cannon further clarified, “The Court anticipates starting with argument from counsel for the parties; proceeding to hear argument from amici and rebuttal from the parties as necessary; and then accommodating any presentation of evidence, if deemed necessary by the Court, following review of the supplemental briefs on the need for further factual development.”
Former President Trump filed a motion to dismiss on February 22, claiming that the Attorney General does not have the authority to appoint a private citizen as a prosecutor without Senate confirmation.
The motion argued that Jack Smith lacks the authority to prosecute the action and that the special counsel’s office was never properly authorized by the Constitution or Congress.
Additionally, an amicus brief filed on March 5 by former Republican Attorneys General Ed Meese and Michael Mukasey, along with constitutional law professors Steven Calabresi and Gary Lawson, supported similar arguments about the lack of authority of both Attorney General Garland and Smith to prosecute Trump in this manner.
“Jack Smith does not have authority to prosecute this case. Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. But neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria,” they wrote. “He wields tremendous power, answerable to no one. And that is a serious problem for the rule of law — whatever one may think of former President Trump or the conduct Smith challenges in the underlying case.”
On March 21, an amicus brief was filed in support of law professor Seth Barrett Tillman and the Landmark Legal Foundation, making arguments that Smith’s appointment as special counsel was unlawful.
However, this position was challenged by an April 3 brief filed on behalf of a group of anti-Trump legal scholars and former government officials.
They argued that Smith had been appropriately appointed as an “inferior officer” with the necessary authority to prosecute the former president, as authorized by Congress.
It will be intriguing to observe the dynamics of the oral arguments presented by former President Trump’s legal team, the special counsel’s office, and the three amici groups during the hearing on June 21.
There is a chance that Judge Cannon could be persuaded that the initial appointment of Special Counsel Smith was illegal.
This could potentially lead to the dismissal of the indictment and may result in appeals, as well as further briefs and hearings not only in the classified documents case but also in Smith’s 2020 election interference case against Trump in Washington D.C.
