Judge Cannon to hold hearing on Trump's argument that Special Counsel Smith's appointment and funding are unlawful

 June 6, 2024

Among former President Donald Trump's several motions to dismiss the classified documents indictment in Florida is one that challenges the alleged unlawful appointment and funding of Special Counsel Jack Smith.

Presiding District Judge Aileen Cannon scheduled a hearing on that motion for June 21 and, in a rare and surprising move, has opened up that hearing for the participation of three outside groups of legal scholars with expertise on the subject matter, the Washington Examiner reported.

Those three groups had all previously filed on the docket amicus or "friend of the court" briefs that outlined their support for or opposition to the arguments made by Trump's attorneys against the validity of Special Counsel Smith's initial appointment to the role and continued funding.

Judge Cannon sets hearing date, order of proceeding

In a May 7 order, Judge Cannon scheduled a June 21 hearing on former President Trump's motion to dismiss the indictment based on the unlawful appointment and funding of Special Counsel Smith, and included in a footnote that "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 separate groups of legal scholars all submitted their requests by the deadline and, in a paperless order on the docket on Tuesday, the judge announced that named representatives of the groups would be permitted to appear and present oral arguments during the June 21 hearing, with each group being allotted 30 minutes to make their case.

In another order on Wednesday, Cannon revealed a few minor changes to the schedule, including that the June 21 hearing would only deal with the Appointments Clause challenge while the related Appropriations Clause challenge from Trump's dismissal motion would be dealt with in a separate hearing on June 24.

She further specified that, at the June 21 hearing, "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."

Trump argues Smith's appointment and funding are unlawful

It was in February that former President Trump's attorneys filed a 16-page motion that argued that Attorney General Merrick Garland lacked any authority under the Constitution's Appointments Clause or congressional authorization to appoint Jack Smith to the role of special counsel.

It was further argued in that motion that the special counsel's office was unlawfully funded by a "permanent indefinite appropriation" linked to the now-expired Independent Counsel's Office.

Thus, given the unauthorized appointment and funding of Smith, all actions taken by his office should be rendered null and void by the court and the indictment pressed against Trump dismissed in its entirety.

The amicus briefs for and against Trump's motion to dismiss

In support of Trump's motion was a 25-page amicus brief filed in March on behalf of former Republican Attorneys General Edwin Meese III and Michael Mukasey and constitutional law professors Steven Calabresi and Gary Lawson, who argued that Special Counsel Smith's appointment was invalid and unauthorized by any relevant statute.

Later that same month, a similarly themed 27-page brief was filed on behalf of constitutional law professor Seth Barrett Tillman and the Landmark Legal Foundation, who argued that Smith lacked the proper statutory authority to prosecute the former president.

However, in April, a 34-page brief was filed on behalf of a collection of anti-Trump legal scholars and former government officials in opposition to Trump's motion and in defense of Smith's appointment and purported prosecutorial authority.

Depending upon how the June 21 hearing plays out, there is a legitimate possibility that Judge Cannon could grant Trump's motion to dismiss the classified documents indictment, if not also set the stage for Smith's subsequent removal as special counsel altogether.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
© 2015 - 2024 Conservative Institute. All Rights Reserved.