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Judge questions Trump lawyers and prosecutors about Jack Smith appointment

Judge questions Trump lawyers and prosecutors about Jack Smith appointment

Judge questions Trump lawyers and prosecutors about Jack Smith appointment

FORT PIERCE, Florida – Lawyers for former President Donald Trump argued in federal court Friday that the classified documents case against him should be dismissed because the lead prosecutor in the case was improperly appointed.

The far-reaching argument is based on a legal premise pushed in some conservative circles that the Senate should have approved Attorney General Merrick Garland’s appointment of special counsel Jack Smith, who is overseeing federal investigations into Trump.

Smith’s team called that argument “unsound” and said Garland has clear authority to appoint lawyers to carry out the functions of the Justice Department. Courts have rejected similar challenges to other recent special counsels, including Robert S. Mueller III.

Trump’s lawyer said at the hearing that there are differences in the legal arguments they were making versus the rejected ones made in DC surrounding Mueller’s appointment.

U.S. District Judge Aileen M. Cannon seemed skeptical.

“The D.C. district court did a pretty thorough review,” Cannon said.

The pretrial hearing is the first of five Cannon has scheduled over three days. Several sessions are scheduled for Monday and Tuesday, including one on whether Smith’s position is legally funded. The hearings reflect Cannon’s tendency to allow in-person arguments on many of the small, incremental legal questions she must decide, creating a delay in key decisions and delaying the start of Trump’s trial.

It is common for defense attorneys to file as many motions as they can to dismiss or delay cases against their clients. But judges typically rule on many of them without holding hearings, which are typically reserved for only the most important and viable motions.

On Friday, Trump attorney Emil Bove argued that Garland has repeatedly said that Smith is acting independently, which Bove said would make Smith a “senior official” who needs to be approved by the Senate.

James Pearce, a lawyer with the special counsel team, said there are many Justice Department officials who are not confirmed by the Senate but have the authority to make important decisions. He said adopting the defense theory would have “pernicious consequences.”

Cannon, who asked detailed questions of the government and defense during the morning portion of the hearing, seemed interested in the idea of ​​how independently Smith has operated as he prosecutes the case.

He asked if Garland had reviewed the impeachment against Trump before filing it. Pearce responded that special regulations require the attorney general to review important decisions in the case, which would likely include an indictment.

Three outside lawyers are expected to argue over the legality of Smith’s appointment this afternoon, reflecting an unusual decision by Cannon to allow such participation in this type of proceeding.

While Cannon has largely spoken out against Trump’s motions in the case so far, the timing of his rulings has favored the former president, who has argued that any trial should occur after the November presidential election in which He is the presumptive Republican candidate.

The judge, a Trump nominee who has been on the court since late 2020, indefinitely postponed Trump’s trial from its original start date in May. Although both the prosecution and defense attorneys told her months ago that they could be ready for trial in August, she has allowed motions to pile up and is processing them slowly, making it unlikely that the trial could be held before elections.

Trump, who did not attend Friday’s hearing, faces dozens of charges for allegedly mishandling classified information after his presidency ended and for conspiring with two aides to obstruct government efforts to recover the Mar-a-Lago material. , his home in Palm Beach, Florida. and private club. He has pleaded not guilty.

Smith is also overseeing the separate federal case charging Trump in D.C. for his efforts to overturn the 2020 election results. That case is on pause while the Supreme Court resolves the question of whether presidential immunity from criminal prosecution extends to the allegations that federal prosecutors have brought against him in the D.C. indictment. A decision from the country’s highest court is expected next week or early July.

Trump separately faces a state case in Georgia over allegations that he tried to overturn the results of the 2020 election in the state. That case is on hold while an attempt to disqualify the prosecutor from the case moves forward in state appeals courts.

Last month, a New York jury convicted Trump of violating state law when he falsified business records to cover up money payments to a porn actress to influence the 2016 presidential election.

In a separate hearing on Monday, Cannon is scheduled to hear arguments on a request by prosecutors to block Trump from making more inflammatory claims that falsely suggest FBI agents were “complicit in a plot to assassinate him.”

On Tuesday, Trump’s lawyers will try to convince Cannon to disqualify the trial’s use of audio notes that investigators obtained from one of his lawyers, Evan Corcoran.

Trump has said attorney-client privilege should apply to these recordings, which include important potential evidence about his alleged obstruction of the government’s efforts to recover the highly classified material from Mar-a-Lago. Prosecutors argue that the audio notes are exempt from that privilege because of the criminal fraud exception, which says communications that may have been part of the commission of a crime cannot be protected. A federal appeals court in D.C. agreed with that argument last year and required Corcoran to turn over his notes and other evidence to prosecutors.

Also on Tuesday, Cannon will consider Trump’s request for what is known as a Franks hearing. This is a hearing to determine whether investigators falsified aspects of the affidavit they used to obtain a search warrant for Mar-a-Lago and, if so, whether evidence collected while executing the warrant should be excluded from the trial.

Trump has argued that investigators misled the judge who approved the order in at least four cases – including by failing to mention that Trump, like all presidents, did not have a formal security clearance – and that he had legal access to the classified materials while he was in the office.

There is usually a high legal threshold for holding a Franks hearing. Cannon said he will schedule one at a later date if he determines it is warranted.

This is a developing story. Will be updated.