Trump’s lawyers will contend that Jack Smith’s appointment as special counsel was illegal

Former President Donald Trump‘s defense team will have an opportunity to argue at a hearing in Florida on Friday that the classified documents case should be dismissed on the grounds that Jack Smith was allegedly unlawfully appointed special counsel.

Judge Aileen Cannon scheduled a hearing on the matter as she addresses one by one the various legal motions Trump has filed to challenge the case, a methodical approach by the judge that has drawn criticism from some and praise from others.

Friday’s hearing will entertain a request Trump filed in February that his case should be dismissed on the grounds that Attorney General Merrick Garland defied an Appointments Clause when he chose Smith to lead two prosecutions against Trump.

“The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States,” Trump’s defense attorneys argued. “As such, Jack Smith lacks the authority to prosecute this action.”

In an amicus brief, also known as a “friend of the court” filing, that was submitted in favor of Trump by two former Republican attorneys general and two law professors, the group of four noted how only two special counsels in the past 40 years, Jack Smith and Robert Mueller, were appointed without having ever been confirmed by the Senate as U.S. attorneys.

“Contrary to Smith’s attempt to portray the authority underlying his appointment as supported by longstanding precedent, in fact the legal basis for his appointment is a vestigial holdover of a bygone jurisprudential era,” the four legal scholars wrote. “And that legal flaw likely went unaddressed because, with only one exception, each special prosecutor for more than forty years before Smith’s appointment was in fact duly authorized by statute.”

Smith’s team, for its part, has argued that Smith taking the position of special counsel was, in fact, compatible with the Appointments Clause and that his office is funded through a proper channel from Congress.

Trump’s trial on the 40 charges he is facing for allegedly retaining national defense information was initially scheduled for May this year.

Cannon scrapped that date, however, and has not yet scheduled a new trial as she faces a logjam of disputes to settle between the parties and other pre-trial steps that still must be followed. She could address some of them after Friday’s hearing or additional hearings she has scheduled beginning Monday, but it has become increasingly unlikely that the pace of the pre-trial process would allow for a trial before the presidential election.

Bradley Moss, a national security attorney, said in a statement to the Washington Examiner that the issue of special counsel appointment has been litigated exhaustively and that Cannon was wasting time by scheduling a hearing on it.

“Judge Cannon continues to go well beyond what is typical or necessary in a criminal matter for addressing pre-trial options, especially for an issue (such as authority to appoint a special counsel) that the courts have repeatedly addressed since the 70s,” Moss said. “This can and should have been resolved weeks ago on the papers alone. There is no need for a lengthy hearing stretching over a day and a half.”

Cannon’s hearings are small victories for Trump’s team, though, regardless of the outcome of them. The former president has pushed for a trial in the case to take place after the election, and adding steps to the pre-trial process has made that more likely.

Cannon has also scheduled a hearing for Monday, where she plans to address a request from Smith to modify Trump’s conditions of his release to restrict his speech on the topic of law enforcement officials involved in the case.

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The request from Smith came in response to Trump claiming President Joe Biden engaged in a plot to assassinate the former president based on warrant documents from the FBI’s search of Trump’s Mar-a-Lago residence in 2022.

The warrant documents contained standard policy language about the FBI’s use of “lethal force,” and the FBI quickly issued a statement saying that nothing about Trump’s search warrant deviated from normal practice.