FORT PIERCE, Fla. (CN) — The special prosecutor who brought Donald Trump’s federal classified documents case was “unlawfully” appointed to his post, Trump’s lawyers argued Friday.
U.S. District Judge Aileen Cannon held a pretrial hearing Friday morning — the first of three over the next several days — to field a motion from Trump’s lawyers to drop the indictment on the grounds that special counsel Jack Smith was illegally appointed by Attorney General Merrick Garland.
Trump’s attorney Emil Bove argued that the provision of U.S. law Garland used to appoint Smith was actually intended to appoint federal employees, not Justice Department officers of Smith’s magnitude.
“This is not a provision that authorizes the appointment of an officer,” Bove told the court.
In 2022, Attorney General Merrick Garland appointed Smith as a Department of Justice special counsel to lead two investigations against Trump. One of those is the probe into Trump’s role in the Jan. 6 attack at the U.S. Capitol.
The other investigation is the one that led to these proceedings, in which Trump is accused of mishandling hundreds of classified documents by stashing them at his Mar-a-Lago residence after he lost the 2020 presidential election. Prosecutors also claim that Trump dodged federal efforts to recollect the documents and return them to the National Archives by moving them and lying to investigators.
Bove on Friday argued that Smith should have been confirmed by the Senate before he took on the Trump investigations. By skirting this supposed requirement, Bove claimed that Smith’s appointment greenlights a “shadow government,” in which crucial federal officers are appointed without proper accountability channels.
Judge Cannon, a Trump appointee, seemed skeptical.
“That sounds very ominous,” Cannon said. “Is that really a realistic risk?”
“I think it’s more than a realistic risk, I think that’s exactly what happened here,” Bove said.
Bove attempted to trap prosecutors between a rock and a hard place, claiming that the defense team was “scoffed at” in previous hearings for raising concerns over Garland, a Democrat, being Smith’s direct superior as he worked to indict Trump. Bove argued that, if Smith can truly act independently from the attorney general, then he shouldn’t have been appointed without Senate approval in the first place.
“To adopt that kind of reasoning is to ignore the text of those statutes, which do not permit what is going on here,” Bove said.
Cannon appeared to briefly entertain that notion when she pressed prosecutor James Pearce about whether Garland has had any direct supervision over the case so far. Pearce replied that “there is not day-to-day supervision,” but Garland has the oversight ability to get updates when necessary, pursuant to the rule.
Regardless, Pearce argued Friday that the defense’s stance had “no support in text or history,” and would have “potentially pernicious consequences.”
Pearce said that if the defense’s argument is upheld by the court, then deputy assistant attorney generals and the principal deputy solicitor general, who are appointed with a similar process, would also be on the chopping block.
“If I understand the argument on the other side, they also would not be authorized,” Pearce said.
He added that the issue was already resolved in the Supreme Court case U.S. v. Nixon, which dealt with a similar special prosecutor appointee that, Pearce said, the courts raised no qualms about.
Both sides took a particular interest in the word “officials” on Friday, with the law in question dictating that “the attorney general may appoint officials to detect and prosecute crimes against the United States.”
Bove argued that “officials” means employees, and since Smith is an officer, not an employee, then his appointment was unlawful.
But prosecutors contested that “officials” is an all-encompassing word that includes officers. Legal scholar Matthew Seligman, who appeared Friday as an amicus curiae backing up the prosecutors’ arguments, said that the word “appoint” tells the court all it needs to know.
“[The law] says ‘appoint,’” Seligman said. “You don’t appoint employees. You appoint officers.”
Cannon didn’t immediately rule on the motion following Friday’s hearing.
Appointed to the bench by Trump in 2020, Cannon has already proven to be a controversial overseer of this case. Last month, she delayed the proceedings indefinitely after the trial was initially scheduled for May 20.
In 2022, Cannon kneecapped federal investigators by requiring them to run the seized documents through a third party before using them in the case. That ruling was quickly overturned in the 11th Circuit, however.
It was also revealed earlier this week that Cannon rejected suggestions from fellow South Florida judges to step aside in the case altogether, according to a report from The New York Times.
The case stems from a 37-count indictment Smith brought against Trump in June 2023. Thanks to a superseding indictment, Trump is now charged with 40 counts: 32 counts of wilful retention of national defense information under the Espionage Act, seven obstruction counts and one count for making false statements.
Also charged in the case alongside Trump are two of his employees: Mar-a-Lago’s property manager Carlos de Oliveira and Trump’s valet and body man Walt Nauta.
Trump has pleaded not guilty to all counts. He was not in attendance for Friday’s hearing.
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