Judge Cannon expands hearing to outside groups on Trump's challenge against Jack Smith's appointment and funding

 June 5, 2024

In February, as one of several filed motions to dismiss the classified documents indictment in Florida, former President Donald Trump's attorneys asserted that Special Counsel Jack Smith's initial appointment and funding were unlawful.

Presiding Judge Aileen Cannon has scheduled a hearing on that motion for June 21, and in a rare move has opened that hearing up for participation by a trio of outside groups to also make pertinent arguments on the matter, according to CNN.

Those three groups, known as amici or "friends of the court," all previously filed briefs explaining their support for or opposition to Trump's challenge against the validity of Smith's initial appointment and every action made since then.

Trump argues special counsel's office is invalid and unauthorized

On February 22, former President Trump's attorneys filed a 16-page motion to dismiss the indictment based on Special Counsel Smith's unlawful appointment and funding by Attorney General Merrick Garland and the Biden administration.

The motion essentially argued that neither the Constitution nor Congress specifically authorized the establishment of the Special Counsel's Office and, as such, AG Garland lacked the statutory authority to appoint Smith to that position, despite claims to the contrary.

It was further argued in the motion that all funding for Smith's office violated the Appropriations Clause, as the funds were drawn from a "permanent indefinite appropriation" established to support the now-defunct "Independent Counsel" previously created and allowed to expire by Congress.

In a May 7 order, Judge Cannon set a new schedule of deadlines for various pre-trial motions and picked June 21 as the date for a "non-evidentiary hearing" on Trump's motion to dismiss for unlawful appointment and funding, and in a footnote set June 3 as the deadline for any amici who wished to participate to seek the court's permission to do so.

Three such requests were submitted and approved by that deadline and, in a paperless order on the docket on Tuesday, the judge allotted 30 minutes each for a representative of each group to present their arguments to the court on the matter of the legitimacy of Special Counsel Smith's initial appointment and continued funding.

Arguments for and against the special counsel's office

The first of the amici groups consists of former Republican Attorneys General Ed Meese III and Michael Mukasy, who were joined by constitutional law professors Steven Calabresi and Gary Lawson, and they filed a 25-page brief on March 5 in support of former President Trump's challenge against Special Counsel Smith's appointment and funding.

"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."

The second amici group included constitutional law professor Seth Barrett Tillman and the Landmark Legal Foundation, and they filed a 27-page brief on March 21 that similarly argued that the special counsel's office was illegitimate, with Smith counting not as an "officer" of the United States in a "continuous" position but rather as little more than a temporary "employee" who lacked any "significant authority" as a prosecutor.

Finally, on April 3, in a 34-page brief, a collection of constitutional lawyers and former government officials outlined their opposition to Trump's motion to dismiss and defended the appointment of Smith as an "inferior officer" to AG Garland as being properly authorized by existing statutes.

Cannon signals willingness to consider challenge against special counsel's validity

CNN noted that this isn't the first time that arguments have been made challenging the validity of the special counsel's office, though such prior efforts to undermine former special counsels, such as Robert Mueller, have failed in other courts.

The outlet observed that Judge Cannon opening up the June 21 hearing to the three outside amici groups signaled that she is at least willing to entertain the notion that Special Counsel Smith's appointment and funding are unlawful which, if so, would seemingly demand an immediate end to his two prosecutorial efforts against Trump.

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