The federal judge overseeing former President Donald Trump’s Florida classified documents case will permit legal scholars to engage in oral arguments regarding the constitutionality of Jack Smith’s appointment as special counsel.
U.S. District Judge Aileen Cannon announced in an order on Tuesday that she would allocate 30 minutes for each legal scholar to present their arguments at a June 21 hearing on the legality of Smith’s appointment by the Justice Department. This hearing is part of Trump’s wider efforts to dismiss the 40-count indictment accusing him of willful retention of classified records and obstruction of federal authorities’ recovery efforts.
Experts presenting arguments include South Texas College of Law professor Josh Blackman; attorney Gene Schaerr, former clerk to Justice Antonin Scalia, representing ex-Bush and Reagan administration U.S. Attorneys General Michael Mukasey and Edwin Meese; and Matthew Seligman, an attorney representing an anti-Trump coalition of constitutional attorneys and former high-ranking government officials.
Cannon had earlier allowed these experts to submit amicus or “friend of the court” briefs for and against Trump’s motions to dismiss. In May, she permitted nonparties to the case to request participation in oral arguments at the hearing, provided they made requests by the specified deadline.
Blackman, representing Landmark Legal Foundation and law professor Seth Barrett Tillman, will argue that Smith is not an “officer of the United States” but rather an “employee” whose “appointment is inconsistent with the separation of powers and political accountability.”
Schaerr will argue that the special counsel is a “principal officer” whose appointment by Attorney General Merrick Garland should necessitate Senate confirmation.
“Smith does not have authority to prosecute this case,” states a brief submitted by a coalition of law professors and the group Citizens United, on which Schaerr will base his argument. “Such actions can only be undertaken by individuals properly appointed as federal officers to duly created federal offices.”
Conversely, Seligman will argue in favor of Smith, asserting that his “appointment Congress may vest in the Attorney General,” and that he remains accountable to, and can be removed by, Garland despite his independent role. This argument is supported by notable legal figures including Watergate-era prosecutor Philip Lacovara, Harvard Law School professor emeritus Laurence Tribe, and attorney and Trump critic George Conway, among others.
Interestingly, Hunter Biden, President Joe Biden’s son, raised a similar argument regarding an improperly appointed special counsel in his criminal gun case before it went to trial this week. His attorney contended that special counsel David Weiss “was unlawfully appointed… and Congress has not appropriated funds for the Special Counsel’s investigation or this prosecution.” U.S. District Judge Maryellen Noreika, a Trump appointee presiding over the first son’s case, rejected this argument.
With Hunter Biden’s firearms case and alleged tax crime indictment, as well as Trump’s separate case initiated by Smith, all four cases have included defense attorneys questioning the special counsels’ appointments’ constitutionality. Cannon’s ruling marks the first instance out of the four cases where a federal judge will allow external parties to present their views on the legality of the special counsel’s appointment.
Last week, Trump was found guilty in a New York criminal hush money case initiated by Manhattan District Attorney Alvin Bragg, an elected Democrat. Following this, Republican allies have suggested that the Biden administration aims to weaken the leading GOP nominee through various criminal cases against him, which could lead to potential jail time or other forms of detention. The former president’s sentencing in Manhattan is set for July 11.
Cannon’s order coincided with Attorney General Garland’s testimony to the House Judiciary Committee, where Republicans scrutinized him over what they perceive as the “weaponization” of justice against Trump amid his four criminal indictments while running for re-election.
Rep. Thomas Massie (R-KY) questioned Garland directly about Smith’s appointment to oversee the classified documents case and another investigation and indictment related to Trump’s alleged attempt to subvert the 2020 election.
“What gives you the authority to appoint a special counsel to create… you’ve created an office in the U.S. government that does not exist without authorization from Congress,” Massie asked Garland.
Garland contended that special counsel appointments made by him and previous attorneys general, including former Attorney General William Barr, reference a regulation connected to a statute.
However, Massie countered, stating that even if an act of Congress was not required to appoint Smith, “you’ve already admitted that there was no act of Congress that established this office, it would still require, according to the Constitution, a nomination by the President and confirmation by the Senate.”
